McGee v. United States Of America

Filing 18

ORDER overruling 17 Objection; vacating 14 Order on Report and Recommendations, adopting 12 REPORT AND RECOMMENDATIONS; denying 1 Motion to Vacate/Set Aside/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 04/02/2014. (thb)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

HENRY MICKLEONARD MCGEE,
Petitioner,
CV 112-178

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

Respondent.

ORDER

Petitioner, an inmate incarcerated at the Federal Correctional Institution in Jesup,
Georgia, filed the above-captioned motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. On March 3, 2014, the Magistrate Judge issued a Report and
Recommendation ("R&R") in which he recommended that Petitioner's motion be denied

without an evidentiary hearing, that the case be closed, and that a final judgment be entered
in favor of Respondent. (Doc. no. 12.) Petitioner was also instructed that any objections to
the R&R had to be filed no later than March 20, 2014. (Doc. no 13.) As no objections to the

R&R were received by the deadline, the Court adopted the R&R on March 27, 2014, and
denied a Certificate of Appealability ("COA"). (Doc.no. 14.)
On March 28, 2014, the Clerk's Office received and filed Petitioner's unsigned

objections to the R&R.1 Although the envelope is dated March 25, 2014, the unsigned
'Rule 11(a) of the Federal Rules of Civil Procedure requires that "[e]very pleading,
written motion, and other paper must be signed by at least one attorney of record in the
attorney's name-or by a party personally if the party is unrepresented." Loc. R. 11.1 also
requires that all papers presented for filing be signed by an attorney, or if a party is
proceeding pro se, by the party.

document is dated March 20, 2014. (See doc. no. 17, p. 4.) Under Houston v. Lack. 487
U.S. 266, 276 (1988), Petitioner's objections are deemed filed on the date of execution and

delivery to prison officials for mailing. Although there is no signature attesting to the date of
execution and delivery, in an abundance of caution, the Court will address Petitioner's

objections to the R&R. Thus, the Court's March 27th Adoption Order is VACATED.

After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation, to which objections have been filed, (doc. no. 17).
None of Petitioner's objections provide any reason to depart from the conclusions in the

R&R. As a result, Petitioner's objections are OVERRULED. Accordingly the R&R of the

Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Petitioner's § 2255
motion is DENIED without an evidentiary hearing.
Further, a federal prisoner must obtain a certificate of appealability ("COA") before
appealing the denial of his motion to vacate. This Court "must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules

Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner
makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
For the reasons set forth in the R&R, and in consideration of the standards enunciated in

Slack v. McDanieh 529 U.S. 473, 482-84 (2000), Petitioner has failed to make the requisite

showing. Accordingly, a COA is DENIED in this case.2 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 in forma pauperis.

See 28 U.S.C. §

1915(a)(3).

2"Ifthe 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.

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

SO ORDERED this ^_ day ofApril, 2014, at Augusta, Georgia.

HONORABLE J. RANDAL HALL
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA