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)

Download PDF
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.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?