Hornsby v. United States of America

Filing 11

ORDER adopting 9 Magistrate Judge's Report and Recommendations as the opinion of the Court; denying Petitioner's 6 Motion for Leave to File Amended Petition; denying Petitioner's motion filed pursuant to 28 U.S.C. § 2255; deny ing a Certificate of Appealability in this case; determining that Petitioner is not entitled to appeal in forma pauperis; closing this civil action; and directing the Clerk to enter a final judgment in favor of Respondent. Signed by Judge J. Randal Hall on 3/7/2017. (jah)

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

WALTER B. HORNSBY,

Petitioner,
CV 116-041

v.

(Formerly CR 110-043)
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 no objections have been filed. Accordingly,

the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion,
and therefore DENIES the motion to amend, (doc. no. 6), and DENIES 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 and DIRECTS the Clerk to

enter final judgment in favor of Respondent.

SO ORDERED this /day ofMarch, 2017, atAugusta, Georgia.

HONORA^&BTrRAJtfDAL HALL
UNITED STATES DISTRICT JUDGE
)UTHEKN DISTRICT OF GEORGIA

'"If the court denies a certificate, a party 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 2255 Proceedings.