Clemons v. Medlin

Filing 14

ORDER adopting the Magistrate Judge's 12 Report and Recommendation as the opinion of the Court; dismissing Respondent Medlin from this case; granting Respondent's 4 Motion to Dismiss; dismissing as untimely the instant petition brought pursuant to 28 U.S.C. § 2254; denying a COA in this case; determining that Petitioner is not entitled to appeal in forma pauperis; closing this civil action; and directing the Clerk to enter the final judgment in favor of Respondent. Signed by Judge J. Randal Hall on 02/27/2015. (jah)

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

DENNIS CLEMONS,

Petitioner,
CV 114-129

v.

BRIAN OWENS, Commissioner, et al.,

Respondents.

ORDER

After a careful, de novo review of the file, the Courtconcurs with the Magistrate Judge's

Report and Recommendation, to which no objections have been filed. Accordingly, the Court
ADOPTS the Report and Recommendation ofthe Magistrate Judge as its opinion, DISMISSES

Respondent Medlin from this case, GRANTS Respondent's motion to dismiss, and DISMISSES
as untimely the instant petition brought pursuant to 28 U.S.C. § 2254.

A prisoner seeking relief under 28 U.S.C. § 2254 must obtain a certificate of
appealability ("COA") before appealing the denial ofhis application for a writ ofhabeas 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.

Accordingly, 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 and DIRECTS the Clerk to
enter final judgment in favor of Respondent.

SO ORDERED this £ Say ofFebruary, 2015, at Augusta, Georgia.

HONORABLE J. RANDAL HALL

UNITED/STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

1 "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.