Oneal v. United States Of America

Filing 11

ORDER granting 4 Motion to Dismiss; adopting 9 Report and Recommendations. Therefore, judgment shall be entered in favor of the respondent and the Petitioner's 2255 motion is dismissed. Signed by Judge Dudley H. Bowen on 4/11/17. (cmr)

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IN THE UNITED STATES DISTRICT COURT p^2:5 FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION MAURICE M. O'NEAL, Petitioner, CV 316-066 V. (Formerly CR 311-006) 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, to which no objections have been filed. Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, GRANTS Respondent's motion to dismiss (doc. no. 4), and DISMISSES Petitioner's § 2255 motion. 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 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-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 DIRECTS the Clerk to enter final judgment in favor of Rppofident. ffj} SO ORDERED this f__ day of April, 2017, at^gusta, Georgia UNITED STATES DISTRICT JUDO '"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.

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