McNair v. United States Of America

Filing 6

ORDER adopting 3 Report and Recommendations, dismissing without prejudice 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). The Court denies a COA in this case and the Court closes this case. Signed by Judge J. Randal Hall on 12/09/2014. (thb)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

DENTAVIA KHIRY MCNAIR,
Petitioner,
CV 114-214

v.

(Formerly CR 113-010)
UNITED STATES OF AMERICA,

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 beenfiled, (doc. no. 5). Accordingly, the
Court ADOPTS the Report and' Recommendation of the Magistrate Judge as its opinion, and
therefore DISMISSES without prejudice Petitioner's motion filed pursuant to 28 U.S.C. § 2255.

Further, a federal prisoner must obtain a certificate of appealability ("COA") before

appealing the denial of his motion to vacate. 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 2255 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.
SO ORDERED this ±_ day of December, 2014, at Augusta, Georgia.

fDAL

UNITED STATES DISTRICT JUDGE
DISTRICT OF GEORGIA

'"If the court denies a certificate, a party may not appeal die 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 2255 Proceedings.