Adams v. McMillan

Filing 14

ORDER ADOPTING 11 Report and Recommendations, DISMISSES the 2254 instant petition, DENIES a COA in this case and CLOSES this civil action. Signed by Chief Judge J. Randal Hall on 04/27/2021. (maa)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION DANA MARIE ADAMS, Petitioner, CV 120-135 V. MEOSHA McMillan, warden, 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. 13.) Although nothing in the objections undermines the R&R,the Court will address two points for the sake of clarity. Petitioner asserts the Magistrate Judge misapprehended her improper bolstering argument because she is asserting T.B.'s hearsay testimony improperly bolstered C.C.'s testimony rather than K.R.'s testimony as the Magistrate Judge stated. (Doc. no. 1, p. 10; doc. no. 13, p. 3.) The distinction makes no difference because, as the Magistrate Judge and state habeas court explained, the Georgia legal analysis for admissibility of prior consistent statements focuses solely on the circumstances of K.R.'s testimony, and the identity of the witness allegedly bolstered is iiTelevant. (See R&R at p. 14.) Also noteworthy is Petitioner's mistaken reliance on Georgia decisions holding it is improper for one witness to testify of a personal belief that another witness is telling the truth. T.B. never testified he believed C.C. or K.R. was telling the truth, and Petitioner never argues otherwise. Instead, the focus of Petitioner's argument is T.B.'s testimony concerning a prior consistent statement by K.R. that she saw two people having sex in her bed. The decisions cited by Petitioner explain such testimony is admissible because K.R.'s veracity was affirmatively placed in issue. See, e.g. Baugh v. State. 585 S.E.2d 616, 619(Ga. 2003) (explaining prior consistent statements are admissible to rebut attack on witness's veracity). Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge, as modified herein, as its opinion, and DISMISSES the instant petition brought pursuant to 28 U.S.C. § 2254. 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.' Moreover, because there are no non- '"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) frivolous issues to raise on appeal, an appeal would not be taken in good faith, and Petitioner is not entitled to appeal informa pauperis. 28 U.S.C. § 1915(a)(3). Upon the foregoing, the Court CLOSES this civil action. SO ORDERED this g^/^^ay of , 2021, at Augusta, Georgia. (J. RANIQA^^ CaiEFJUDt iitedWates district court SOtHH^RN DISTRICT OF GEORGIA to the Rules Governing Section 2254 Proceedings.

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