Hoehn v. Allen

Filing 11

ORDER adopting 9 Report and Recommendations; granting 6 Motion to Dismiss; denying the request for an evidentiary hearing on the merits of the petition; dismissing without prejudice the instant petition brought pursuant to 28 U.S.C. § 2254. The Court denies a COA in this case, and closes this civil action. Signed by Judge J. Randal Hall on 11/25/2014. (thb)

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

AUGUSTA DIVISION

JOSEPH DOMINIC HOEHN,
Petitioner,
CV 114-093

v.

MARTY ALLEN, Warden,

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 Court

ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion. Therefore,
the Court GRANTS Respondent's motion to dismiss, (doc. no. 6), DENIES the request for an

evidentiary hearing on the merits of the petition, and DISMISSES without prejudice the instant
petition brought pursuant to 28 U.S.C. § 2254.

A prisoner seeking relief under § 2254 must obtain a certificate of appealability ("COA")

before appealing the denial of his application for a writ of habeas corpus. 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 2254 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, the Court DENIES a COA 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, and Petitioner is not entitled to appeal informa pauperis. See 28 U.S.C. §
1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action.

SO ORDERED this^Tday of

// Ol/MyAtA

2014, at Augusta, Georgia.

UNITED STATES DISTRICT JUDGE
DISTRICT OF GEORGIA

'"If the court denies a certificate, the parties 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 2254 Proceedings.
2