Gaines v. United States Of America

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 5 Motion to Dismiss, 8 Motion to Amend/Correct, and 7 Report and Recommendations. COA is denied in this case. Signed by Judge Lisa G. Wood on 5/22/17. (slt)

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U. 1initeö Otatvq 0i5trict Court for the 'outbetn Miotritt of Otorgia mu PlAy 22 'tateboro tbiion j laA-, JUANICE GAINES, Movant, V CV617-006 CR608 -0 12 . UNITED STATES OF AMERICA, Respondent. ORDER After a careful, cia novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation (R&R) (doc. 7), to which objections have been filed. Doc. 8 (movant's "motion to amend" seeks amendment in name only -- in substance it objects to the R&R and recapitulates parts of Gaines' original motion in less detail and without any law or facts beyond his own musings) . Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Further, 28 U.S.C. § 2255 movants must obtain a certificate of appealability ("COA") before appealing the denial of his application for writ of habeas corpus. 28 U.S.C. § 2253(c) (1) (B). AO 72A (Rev. 8182) This Court 'must issue or deny a [COA] when it 3: f[ 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 under 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. 1 Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Accordingly, movant is not entitled to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3). SO ORDERED this day of May, 20/ (. , LISA ODBEY WOOD, DISTRICT JUDGE UITE STATES DISTRICT COURT SbUT8(ERN DISTRICT OF GEORGIA 1 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. AO 72A (Rev. 8/82) 2

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