KEITH v. BERRY

Filing 9

ORDER ADOPTING 7 Report and Recommendations and denying as moot 2 Motion for Leave to Proceed in forma pauperis filed by PAUL KEITH. The §2254 petition is dismissed without prejudice. Further, the Court denies COA in this case and finds Petitioner is not entitled to appeal ifp. This case stands Closed. Signed by Chief Judge J. Randal Hall on 12/6/2017. (pts)

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

PAUL KEITH,
Petitioner,
CV 117-142

v.

WALTER BERRY, Warden,

Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which no objections have been filed. Accordingly,

the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion.
Therefore, the Court DENIES AS MOOT the motion to proceed in forma pauperis, (doc.
no. 2), and DISMISSES this petition filed pursuant to 28 U.S.C. § 2254 without prejudice
for failure to exhaust.

A prisoner seeking relief under § 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 nonfrivolous issues to raise on appeal, an appeal would not be taken in good faith, and Petitioner
is not entitled to appeal informa pauperis. See 28 U.S.C. § 1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action.

SO ORDERED this j£_ day of December, 2017, at Augusta, Georgia.

J. RAND^HALL, CHIEF JUDGE
UNITED/STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

1 the court denies a certificate, the parties may not appeal the denial but may seek a
"If
certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a)
to the Rules Governing Section 2254 Proceedings.