Greene v. United States of America

Filing 11

ORDER overruling Petitioner's objections, adopting 7 Report and Recommendations, denying the motion filed pursuant to 28 U.S.C. § 2255, and denying a COA in this case. The Court closes this civil action and directs the Clerk to enter final judgment in favor of Respondent. Signed by Chief Judge J. Randal Hall on 08/07/2018. (thb) Modified on 8/7/2018 (thb).

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

JEROME GREENE,
Petitioner,
CV 117-124

V.

(Formerly CR 116-056)
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 ("R&R"), to which objections have been filed. (Doc.
no. 10.) In his objections. Petitioner argues an evidentiary hearing is necessary regarding his

lost appeal claim because there is a factual dispute as to whether Petitioner instructed trial
counsel to file a notice of appeal. (Doc. no. 10, p. 5.)

As the Magistrate Judge stated in his R&R, Petitioner signed a notice of postconviction consultation certification indicating he decided not to file an appeal after trial

counsel explained the consequences of not doing so. (Doc. no. 7, pp. 19-20); see also United
States V. Greene, CR 116-056, doc. no. 14 (S.D. Ga. Jan. 10, 2017). "It is well-settled that

the district court is not required to grant an evidentiary hearing when the defendant's claims
are affirmatively contradicted by the record evidence ...." Rosin v. United States. 786 F.3d
873, 878 (11th Cir. 2015). Because the notice of post-conviction consultation certification
affirmatively contradicts Petitioner's self-serving contention he instructed trial counsel to file

a notice of appeal, he is not entitled to a hearing on this claim.

Newham v. United

States. Nos. CV 216-009, CR 214-012, 2017 WL 1823152, at *9 (S.D. Ga. May 5, 2017),

adopted by 2017 WL 2589584 (S.D. Ga. June 14, 2017); Eubank v. United States. Nos. CV
416-054, CR 414-005, 2016 WL 750344, at *1 (S.D. Ga. Feb. 25, 2016), adopted bv 2016
WL 1464578(S.D. Ga. Apr. 13, 2016).

Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report
and Recommendation of the Magistrate Judge as its opinion, and therefore DENIES
Petitioner's motion filed pursuant to 28 U.S.C. § 2255.

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 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.'
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).

'"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 Goveming Section 2255 Proceedings.
2

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

SO ORDERED this

day of August, 2018, at Augusta, Georgia.

J. RANtij^ HALL,CHIEF JUDGE
jJNITEDjSTATES DISTRICT COURT

Southern district of Georgia