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)

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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

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