Augustus Miller, Jr. v. United States of America

Filing 6

ORDER ADOPTING 2 Report and Recommendations, DISMISSING Plaintiff's 2255 Motion, DENYING a COA in this case and CLOSING this civil action. Signed by Judge Dudley H. Bowen on 01/18/2017. (maa)

FILED
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION

^Oll JAN I 8 A K> UT
_
CLERIC,
^-0
SO.DIST. CFGA.

AUGUSTUS MILLER,JR.,

Petitioner,
CV 316-077

V.

(Formerly CR 313-007)
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
and

DISMISSES

as

untimely

the

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 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. McDaniek 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.

SO ORDERED thisflday of January, 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.
2