Burroughs v. United States of America

Filing 13

ORDER denying 7 Motion for Leave to File; adopting 10 Report and Recommendations. Therefore, the 2255 motion is Denied, COA is Denied, and this case is Closed. Signed by Judge Dudley H. Bowen on 9/19/16. (cmr)

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U.o DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF GEORGIA

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UffST. OF GA

DUBLIN DIVISION
HERBERT EUGENE BURROUGHS,

Petitioner,
CV 315-055

V.

(Formerly CR 313-006)
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 tiled. (Doc.
no. 12.) Plaintiff does not offer any new information, evidence, or argument that wairants a
deviation from the Magistrate Judge's recommendation.

Accordingly, the Court

OVERRULES Petitioner's objections. ADOPTS the Report and Recommendation of the
Magistrate Judge as its opinion, DENIES Petitioner's motion to amend (doc. no. 7), and
DENIES without an evidentiaiy hearing 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 w^hen it enters a tlnal 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 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 pauperis.
See 28 U.S.C. § 1915(a)(3).

Upon the foregoing, thqXourt-CLOSES this civil action.

SO ORDERED this /_[_ day of September,2016, at Augusta, Georgia.

ITED STATES DISTRICT JUDGE

'"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.