Johnson v. Johnson

Filing 17

ORDER overruling Petitioner's objections; adopting 11 Report and Recommendation; denying the instant petition brought pursuant to 28 U.S.C. § 2254; and denying a COA in this case. This civil action is closed, and a final judgment shall be entered in favor of the Respondent. Signed by Judge J. Randal Hall on 08/17/2015. (thb)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

HASKELL D. JOHNSON,
Petitioner,
CV 114-204

v.

GLENN JOHNSON, 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 objections have been filed, (doc. no. 16).
The Magistrate Judge recommended denial after a thorough review of the record. (Doc. no.
11.)

Petitioner's objections are mainly a reiteration of contentions previously made and

rejected by the Magistrate Judge. Two points, however, warrant further comment. First,
Petitioner states that he "never served a copy of the Respondent objections." (Doc. no. 16,

pp. 1, 13.) Yet, the record patently contradicts this assertion. (E.g., doc. no. 5, p. 4.)
Respondent's exhibit filings are properly accompanied by certificates of service showing that
Petitioner was served with the answer and exhibits. (Id.) Second, much of the Petitioner's

objections claim ineffectiveness of appellate counsel. (Doc. no. 16, pp. 11, 17, 19.) These

objections do not merit any additional consideration. As detailed in the Magistrate Judge's

Report and Recommendation, Petitioner's appellate counsel's performance was neither

deficient nor prejudicial. (Doc. no, 11, p. 24-29.)
Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report

and Recommendation of the Magistrate Judge as its opinion, and DENIES 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 nonfrivolous 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).

uTf 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

Upon the foregoing, this civil action is CLOSED, and a final judgment shall be
ENTERED in favor of Respondent.

SO ORDERED this //clay of August, 2015, at Augusta, Georgia.

HONORABCE J. RANDAL HALL
UNITCDSTATES DISTRICT JUDGE

JtHERN DISTRICT OF GEORGIA