Davis v. McLaughlin

Filing 9

ORDER ADOPTING 7 Report and Recommendations, DISMISSING AS MOOT 2 Motion for Leave to Proceed in forma pauperis, DISMISSING without prejudice the 2254 Petition, DENYING a COA in this case and CLOSING this civil action. Signed by Judge J. Randal Hall on 02/15/2017. (maa)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION TIMOTHY DAVIS, Petitioner, CV 116-207 v. GREGORY MCLAUGHLIN, 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, DISMISSES AS MOOT the motion to proceed in forma pauperis, (doc. no. 2), and DISMISSES without prejudice this petition filed 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 orderadverse 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). Upon the foregoing, the Court CLOSES this civil action. SO ORDERED this _/S_day ofFebruary, 2017, at Augusta, Georgia. HONORABfcET. RANDAL HALL UNITED SJATES DISTRICT JUDGE iRN DISTRICT OF GEORGIA "'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. 2

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