Brown v. Conley

Filing 8

ORDER adopting 3 Report and Recommendations; denying as moot 2 Motion for Leave to Proceed in forma pauperis; and DISMISSING the 2254 petition. The Court DENIES a COA in this case and enters Judgment in favor of Respondent. This civil action stands CLOSED. Signed by Chief Judge J. Randal Hall on 06/28/2017. (maa)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION TIMOTHY LAVERN BROWN, Petitioner, CV 117-048 v. T.J. CONLEY, 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. 7). Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, DENIES AS MOOT Petitioner's motion to proceed IFP (doc. no. 2), and DISMISSES as successive 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 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 DIRECTS the Clerk to enter final judgment in favor of Respondent. SO ORDERED this^J? clay of_ '//fyL^ 2017, at Augusta, Georgia. J. RAN©A^rHALL,<:HIEF JUDGE UNITED SjTATES DISTRICT COURT 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.

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