Gross v. United States of America

Filing 7

ORDER adopting 4 Report and Recommendations. Therefore, the petitioner's 2255 motion is denied, judgment will be entered in favor of the respondent, and this civil action stands closed. Signed by Chief Judge J. Randal Hall on 5/31/17. (cmr)

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

EUGENE MICHAEL GROSS,
Petitioner,
CV 117-021

v.

(Formerly CR 115-077)
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 been filed (doc. no. 6).
Although the objections were notproperly filed because Petitioner did not sign them, nothing

therein calls into question the Magistrate Judge's analysis that Petitioner's motion filed

pursuant to 28 U.S.C. § 2255 is without merit. Accordingly, the Court ADOPTS the Report
and Recommendation of the Magistrate Judge as its opinion, and therefore DENIES
Petitioner's § 2255 motion.

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

appealing the denial ofhis 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 ofa 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 in forma pauperis.
See 28 U.S.C. § 1915(a)(3).

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

SO ORDERED this 3/ * clay of

2017, at Augusta, Georgia.

STATES DISTRICT COURT
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.
2