Musgrove v. United States of America

Filing 18

ORDER ADOPTING 11 REPORT AND RECOMMENDATION of the Magistrate Judge as its opinion, granting Respondent's 8 Motion to Dismiss, and dismissing Petitioner's motion, filed pursuant to 28 U.S.C. § 2255. The Court denies a COA and directs the Clerk to enter final judgment in favor of Respondent. Signed by Chief Judge J. Randal Hall on 1/17/2023. (ca)

Case 1:22-cv-00008-JRH-BKE Document 18 Filed 01/17/23 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

JASON MICHAEL MUSGROVE,

Petitioner,
CV 122-008

V.

(Formerly CR 120-012)
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, to which objections have been filed. (Doc. no. 15.)
Accordingly,the Court ADOPTS the Report and Recommendation ofthe Magistrate Judge as
its opinion, GRANTS Respondent's motion to dismiss, (doc. no. 8), and DISMISSES
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 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

Case 1:22-cv-00008-JRH-BKE Document 18 Filed 01/17/23 Page 2 of 2

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 informa pauperis.
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 /^T^day of January, 2023, at Augusta, Georgia.

J. RANBAWfALL,CHIEF'JUDGE

UNITED^ATES DISTRICT COURT
^DISTRICT OF GEORGIA

'"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.