Banda v. United States Of America

Filing 15

ORDER adopting 9 Report and Recommendation; denying without an evidentiary hearing Petitioner's motion filed pursuant to 28 U.S.C. § 2255; denying Petitioner's request for appointment of counsel; denying a COA in this case; closing this civil action; and directing the Clerk to enter final judgment in favor of Respondent. Signed by Judge J. Randal Hall on 07/09/2014. (thb)

IN THE LTNITED
STATESDISTRICTCOURT
FORTHE SOUTHERN
DISTRICTOF GEORGIA
AUGUSTA DIVISION
ALFONSOALVEREZ BANDA.
Petitioner,

cv 113-070
(Formerly 109-133)
CR
LINITEDSTATESOF AMERICA,
Respondent.

ORDER
After a careful, de novo rcview of the file, the Court concurs$'ith the Magistrate
to
Judge's Report and Recommendation, which objectionshave been filed (doc. no. 14).
Accordingly, the Court ADOPTS the Report and Recommendationof the Magistrate
Judge as its opinion, and therefore DENIES without an evidentiary hearing Petitioner's
to
motion filed pursuant 28 u.s.c. $ 2255.1
Furlher, a federal prisoner must obtain a certificate of appealability C'COA')
before appealing the denial of his motion to vacate. This Court "must issue or deny a
rPetitioner's request for appoinhnentof counsel in his objections is likewise DENIED.
(Doc. no. 14, p. 4.) There is no automatic constitutional right to counsel in habeasproceedings.
SeePennsylvania Finley, 481 U.S. 551, 555 (1987); U.S. v. Webb, 565 F.3d 789,794 (llth
v.
Cir.2009) Q)e/curiam)(citing Barbourv. Haley,47l F.3d 1222,1227( I 1th Cir. 2006)). Rather,
appointment of counsel is "a privilege that is justified only by exceptional circumstances[.]"
McCalf v. Cook, 495 F. App'x 29,31 (1 1th Cir. 2012) Qter curiam). In light of the Magistrate
Judge's thorough analysis and recommendation that the $ 2255 motion be denied, a
recommendationwhich is adopted herein as the opinion of the Court, there are no exceptional
appointment.
warranting the requested
circumstances

to
certificate appealability
of
when it entersa final order adverse the applicant." Rule
This Courtshouldgranta COA
11(a)to the RulesGoverning
Section
2255Proceedings.
right."
showingof the denialof a constitutional
only if the prisoner
makesa "substantial
set
28 U.S.C. $ 2253(c)(2). For the reasons forth in the Repon and Recommendation,
in
and in consideration the standards
of
enunciated Slackv. McDaniel, 529 U.S. 473,
482-84(2000),Petitionerhas failed to make the requisiteshowing. Accordingly,the
issues
because
thereareno non-frivolous
CourtDENIES a COA in this case.' Mo.eon'er,
Petitioner
is
would not be takenin goodfaith. Accordingly,
to raiseon appeal, appeal
an
28
notentitled appeal
to
informapauperis.See U.S.C. 19t5(a)(3).
$
Upon the foregoing,the Courl CLOSES this civil action and DIRECTS the
Clerkto enterhnaljudgmentin favorof Respondent.

r)JA

this
2014. Augusta.
at
Georgia.
SOORDERED 7'day of July,

STATES
DISTRICT
JUDGE
T
S O U T H E RD I S T R I CO FC E O R C I A
N

"'If the court denies a certificate, a party may not appeal the denial but may seek a
certificate from the court of appealsunder FederalRule of Appellate Procedure22." Rule I 1(a)
to the RulesGoverninsSection
2255 Proceedinqs.