Walker v. United States Of America

Filing 10

ORDER ADOPTING the 8 REPORT AND RECOMMENDATIONS as the Court's opinion, granting Respondent's 3 Motion to Dismiss, and dismissing Petitioner's motion filed pursuant to 28 U.S.C. § 2255. Accordingly, Petitioner is denied a COA in this case and Petitioner is not entitled to appeal IFP. The Clerk is directed to close this case with judgment in favor of Respondent. Signed by Judge Dudley H. Bowen on 09/14/2020. (jlh)

Download PDF
1L!£.D IN THE UNITED STATES DISTRICT COURT ..T U.S.DlSlKlCi COUR’T FOR THE SOUTHERN DISTRICT OF GEORGIA DAVID JAMAL WALKER, Petitioner, V. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) A 10-- 00 im SEP DUBLIN DIVISION :lerv.0 CV 320-013 (Formerly CR 317-005) ORDER After a careful, cle 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. 3), 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 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. ^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 14"’ day of September, 2020, at Augusta, Georgia. l4t 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

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?