Hernandez v. United States of America

Filing 6

ORDER ADOPTING 2 Report and Recommendations of the Magistrate Judge as the opinion of the Court and movant's motion is DENIED without prejudice. A COA is DENIED in this case. Movant is not entitled to appeal in forma pauperis. Signed by Judge Lisa G. Wood on 6/20/2018. (ca)

tlSmte))! States!I9ts(tnct Conrt

for t|ie ^ontliem Btotrtct of (f^eorgta
^abatmali IBtlitOtott
JOAQUIN MENDEZ-HERNANDEZ,
Movant,
CV418-112

V.

CR413-004

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,
dkt. no. 2, to which objections have been filed, dkt. no. 5.
Movant

admits

that

this

is

his

second

motion

under

28 U.S.C.

§ 2255 and that he has not yet received authorization from the
Eleventh Circuit to file it.

Dkt. No. 5.

So, he says he will

seek the necessary authorization from the Court of Appeals.

As

this

Court

previously

explained,

however,

it

has

Id.

no

jurisdiction to entertain

his second motion until he receives

that approval.

2 at 1-3 (citing, inter alia, In re

Dkt. No.

Bradford, 830 F.3d 1273, 1277 (11th Cir. 2016); Carter v. United

States, 405 F. App'x 409, 410 (11th Cir. 2010); United States v.
Holt, 417 F.3d 1172, 1175 (11th Cir. 2005)).

Accordingly, the

Report and Recommendation of the Magistrate Judge is ADOPTED as

the opinion of the Court and movant's motion is DENIED without

prejudice.^
Further, a prisoner seeking relief under 28 U.S.C. § 2255
must

obtain

appealing
corpus.

the

a

certificate

denial

of

of

his

appealability

application

28 U.S.C. § 2253(c)(1)(B).

for

C'COA")

writ

of

before

habeas

This Court ''must issue or

deny a certificate of appealability when it enters a final order
adverse to the applicant."
Section 2255 Proceedings.

Rule 11(a) to the Rules Governing

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), movant has failed to make the requisite showing.

Accordingly, a COA is DENIED in this case.^

Moreover, because

there are no non-frivolous issues to raise on appeal, an appeal

would not be taken in good faith.

entitled

to

appeal

in

forma

Accordingly, movant is not

pauperis.

See

28 U.S.C.

§ 1915(a)(3).

^

In other words, once movant has permission from the Court of

Appeals, he may file his authorized successive motion anew.

^

"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.

so ORDEPED this

day of June, 2018.

HON. ILIS^ GODBEY WOOD, JUDGE

UNITEig/sTATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

A0 72A

(Rev. 8/82)