McGee v. United States Of America

Filing 14

ORDER adopting 12 Report and Recommendations, denying 1 Motion to Vacate; Set Aside or Correct Sentence (2255) without an evidentiary hearing, and denying a COA in this case. A final judgment shall be entered in favor of Respondent, and this civil action shall be closed. Signed by Judge J. Randal Hall on 03/27/2014. (thb)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

HENRY MICKLEONARD MCGEE,
Petitioner,
CV 112-178

v.

(Formerly CR 109-035 & CR 110-073)
UNITED STATES OF AMERICA,

Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which no objections have been filed. Accordingly,
the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of
the Court. Therefore, Petitioner's motion filed pursuant to 28 U.S.C. § 2255 is DENIED

without an evidentiary hearing.

Further, a federal prisoner must obtain a certificate of appealability ("COA") before

appealingthe denial of his motion to vacate. This Court "must issue or deny a certificateof
appealabilitywhen it enters a final order adverseto the applicant." Rule 11(a) to the Rules
Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner

makesa "substantial showingofthe denialof a constitutionalright." 28 U.S.C. §2253(c)(2).
For the reasons set forth in the Report and Recommendation, and in consideration of the
standards enunciated in Slack v. McDaniel. 529 U.S. 473, 482-84 (2000), Petitioner has

failed to make the requisite showing. Accordingly, a COA is DENIED in this case.1
Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not
be taken in good faith. Accordingly, Petitioner is not entitled to appeal informa pauperis.
See 28 U.S.C. § 1915(a)(3).

Upon the foregoing, a final judgment shall be ENTERED in favor of Respondent,
and this civil action shall be CLOSED.

SO ORDERED this/Of /day of March, 2gj4raT7^jgusta. Georgia.

HONQR^JBfcE J. RANDAL HALL
UNITED/STATES DISTRICT JUDGE

---SOUTHERN DISTRICT OF GEORGIA

1"If the court denies a certificate, a party may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule
11(a) to the Rules Governing Section 2255 Proceedings.