Myrick v. United States of America

Filing 10

ORDER adopting 8 Report and Recommendations; granting 4 Motion to Dismiss; dismissing the instant § 2255 motion without an evidentiary hearing; and denying a COA in this case. This civil action shall be closed. Signed by Judge J. Randal Hall on 02/19/2014. (thb)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

WILLIE MYRICK,

Petitioner,
CV 113-028

v.

(Formerly CR 111-040)
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, Respondent's motion to dismiss is GRANTED

(doc. no. 4), and the instant § 2255 motion is DISMISSED 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 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 informapauperis. See 28 U.S.C. § 1915(a)(3).
Upon the foregoing, this civil action shall be CLOSED.

SO ORDERED this/Pa'ay ofFebruary, 2014, at Augusta, Georgia.

HONORABLE J. RANDAL HALL

UNITEDyTATES DISTRICT JUDGE
FFHHtN 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.