Gaines v. United States Of America
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)
1initeö Otatvq 0i5trict Court
for the 'outbetn Miotritt of Otorgia mu PlAy 22
CR608 -0 12
UNITED STATES OF AMERICA,
After a careful, cia
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).
This Court 'must issue or deny a [COA] 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
under the standards enunciated in
Slack v. McDaniel,
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
pauperis. See 28 U.S.C. §
SO ORDERED this
day of May, 20/ (.
LISA ODBEY WOOD, DISTRICT JUDGE
UITE STATES DISTRICT COURT
SbUT8(ERN DISTRICT OF GEORGIA
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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