Rushing v. United States of America

Filing 11

ORDER adopting 9 Report and Recommendations. Therefore, the 2255 motion is Denied, judgment shall be entered in favor of the Respondent and this civil action is closed. Signed by Judge Dudley H. Bowen on 4/17/17. (cmr)

Download PDF
ORIGINAL U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA nrmr TM nrvT^iToxr DUBLIN DIVISION AUCL'STA DIV. 201] APR 17 PM L* " CLERK DIST. OF GA. 50. LASHAWN S. RUSHING, Petitioner, CV 316-006 V. (Formerly CR 313-007) UNITED STATES OF AMERICA, Respondent. ORDER After a careftil, 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 and DENIES without an evidentiary 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 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 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, the Court CLOSES this civil action and ENTERS a final judgment in favor ofResponde^ SO ORDERED this day of April, 2017, at Augusta, Georgia UNITED 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.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?