Rushen v. United States of America

Filing 32

ORDER denying 26 Motion for Discovery; adopting 27 Report and Recommendations. Therefore, the petition 2255 is denied, this civil action is closed and final judgment is to be entered in favor of the respondent. Signed by Judge J. Randal Hall on 7/8/14. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

HENRY MAX RUSHEN,
Petitioner,
CV 113-063

v.

(Formerly CR 109-063)
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 objections have been filed. (Doc. no.
31.) The Court OVERRULES Petitioner's objections because they do not provide any
reason to deviate from the Magistrate Judge's conclusions. In keeping with his past filing

practice, Petitioner also included several requests for Court action pertaining to discovery
(see generally doc. no. 31), which the Court DENIES. Accordingly, the Court ADOPTS
the Report and Recommendation of the Magistrate Judge as its opinion, DENIES
Petitioner's requests for discovery in his reply and his motion for discovery (doc. nos. 23,

26), and DENIES Petitioner's amended motion filed pursuant to 28 U.S.C. § 2255
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. McDanieh 529 U.S. 473,

482-84 (2000), Petitioner has failed to make the requisite showing. Accordingly, the

Court DENIES a COAin 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 in formapauperis. See 28 U.S.C. § 1915(a)(3).
Upon the foregoing, the Court CLOSES this civil action and DIRECTS the
Clerk to enter final judgment in favor of Respondent.

SO ORDERED this _&_ day of July, 2014, a^Augiista, Georgia.

HONORABEE J. RANDAL HALL

JJNIT1DJSTATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

'"If the courtdenies 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.