GOW v. GRAMIAK

Filing 18

ORDER adopting 15 Report and Recommendations, granting 12 Motion to Dismiss, dismissing the petition filed pursuant to 28 U.S.C § 2254 as a matter of comity, and denying a COA in this case. The Court closes this civil action and directs the Clerk to enter final judgment in favor the Respondents. Signed by Judge J. Randal Hall on 01/24/2017. (thb)

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

KEVIN GOW,
Petitioner,
CV 116-054

v.

TOM GRAMIAK,

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. 17.)
Petitioner does not offer any new information, evidence, or argument that warrants a

deviation from the Magistrate Judge's recommendation. Accordingly, the Court ADOPTS

the Report and Recommendation of the Magistrate Judge as its opinion, and DISMISSES as
a matter of comity while Petitioner challenges the same burglary convictions in the state
habeas court, 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 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 DENDZS 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 in forma pauperis.

See 28 U.S.C. §

1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action and DD2ECTS the Clerk to
enter final judgment in favor of Respondents.

SO ORDERED this^^day ofJanuary, 2017, at Augusta, Georgia.

HONOR^BLBT. RANDAL HALL
UNITEDSTATES 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.