Brown v. UNITED STATES OF AMERICA

Filing 31

ORDER overruling Petitioner's objections and ADOPTING 22 Report and Recommendations. 17 Motion to Amend/Correct is denied. Petitioner's motion filed pursuant to 28 U.S.C. §2255 is denied. Further the Court denies a COA in this case and IFP status on appeal. This case stands Closed. Signed by Judge Dudley H. Bowen on 2/1/2019. (pts)

FiLLu

US.DiSTRiCTCOUn i
IN THE UNITED STATES DISTRICT COURT

AUGUSTA DSV.
, nu o oo

2019 FEB-1 PH3:39

FOR THE SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

CLERK
50

MICHAEL ANTHONY BROWN,

Petitioner,
CV 117-122

V.

(Formerly CR 114-025)
UNITED STATES OF AMERICA,
Resoondent.

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. 29).
None of Petitioner's objections call into question the Magistrate Judge's conclusion that
Petitioner's motion filed pursuant to 28 U.S.C. § 2255, as well as his motion to amend, are

without merit. Petitioner strenuously argues the Magistrate Judge misunderstood or ignored
parts of his claims, (see, e.g.. id. at 14, 28, 29, 36), but Petitioner's dissatisfaction with the
Magistrate Judge's word choice does show any of the claims for relief were ignored or
changed from their original form.

Petitioner's objections also request a ruling on a withdrawn motion to amend,"Let the
record show that although Petitioner withdrew the first motion to amend & then filed a
second motion to amend it was not to disregard the first motion to amend." (Id at 38.)

Consistent with Petitioner's pattern and practice of attempting to provide a new

"interpretation" of an argument after receiving an explanation why the argument as originally
presented fails, Petitioner now claims his second motion to amend actually incorporated his
first motion. (See doc. nos. 14-16, 19.) The Court rejects Petitioner's after-the-fact attempt
to change his litigation choices.

In any event, there is no merit to Petitioner's request for re-sentencing as part ofthese
§ 2255 proceedings. Petitioner offers no valid reason for the untimeliness of his second
motion to amend, and as explained in detail by the Magistrate Judge, even if the motion had
been timely. Petitioner's assertion he should be re-sentenced based on a substantive change

to the advisory Guidelines after his sentencing on December 8, 2014, does not afford him
relief. (See doc, no. 22. pp. 41-42.) Nothing in the objections alters that conclusion.
Accordingly, the Court OVERRULES all of Petitioner's objections, ADOPTS the
Report and Recommendation of the Magistrate Judge as its opinion, and therefore DENIES

the motion to amend, (doc. no. 17), and DENIES Petitioner's § 2255 motion without an
evidentiary hearing.
Further, a federal prisoner must obtain a certificate of appealability ("COA") before
appealing the denial of his 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 CCA only if the prisoner
makes a "substantial showing ofthe 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.'
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 paiiperis.
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 favocafRespondent

SO ORDERED this /-dXdayofFebruary, 2019, at Augusta, Georgia.

UNITED STATES DISTRICT JUDO

'"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.