Frank v. United States of America

Filing 6

ORDER adopting 2 Report and Recommendation; dismissing the instant § 2255 motion; denying COA in this case; and closing this civil action. Signed by Judge Dudley H. Bowen on 08/30/2013. (thb)

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IN THE L|NITEDSTATESDISTRICTCOURT
DISTRICTOF GEORGIA
FORTHE SOUTHERN

20134U630
pll t:0t
CLERI{

AUGUSTADIVISION
TOBIASA. FRANK,
Petitioner,

cv 113-113
(Formerly 103-045)
CR
L]NITEDSTATESOF AMERICA,
Respondent.

ORDER

After a careful, de novo revrew of the file, the Courl concurs with the Magistrate
Judge's Reporl and Recommendation, to which no objections have been filed.
Accordingly, the Report and Recommendation the Magistrate Judgeis ADOPTED as
of
the opinion of the Court, and the instant $ 2255 motion is DISMISSED.
Further, a federal prisoner must obtain a certificate of appealability C'COA')
before appealingthe denial of his motion to vacate. This Court "must issue or deny a
certificate of appealability when it enters a final order adverseto the applicant." Rule
11(a) to the Rules Governing Section2255 Proceedings.This Court should grant a COA
only if the prisoner makes a "substantialshowing of the denial of a constitutionalright."
28 U.S.C. $ 2253(c)(2). For the reasons fofih in the Report and Recommendation,
set
and in considerationof the standardsenunciatedin Slack v. McDaniel, 529 U.S. 473,
482-84 (2000), Petitioner has failed to make the requisite showing. Accordingly, a COA

there are no non-frivolous issuesto raiseon
is DENIED in this case.r Moreover, because
appeal,an appealwould not be taken in good faith. Accordingly, Petitioner is not entitled
to appealinforma paupens. See28U.S.C.S 1915(a)(3).
Upon the foregoing,this civil action is CLOSED.

SO ORDEREDthis,ffiay

of August,201i, at Augusta,
Georgia.

TESDISTRICT

'

"If the court deniesa certificate,a pafly may not appealthe denial but may seek
a certificate from the court of appealsunder Federal Rule of Appellate Procedure22."
Rule l1(a) to the RulesGovemingSection
2255 Proceedings.