Phady v. United States of America

Filing 10

ORDER granting 6 Motion to Dismiss for Failure to State a Claim; adopting 8 Report and Recommendation. Certificate of appealability is denied. Signed by U.S. District Judge Karen E. Schreier on 2/17/17. (SLW)

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION INPAENG PHADY, 4:16-CV-04144-KES Petitioner, vs. UNITED STATES OF AMERICA, ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS Respondent. Petitioner, Impaeng Phady, filed a motion under 28 U.S.C. ' 2255 for a sentence reduction. Respondent moved to dismiss the motion because the claim is procedurally defaulted, does not state claim for relief, and does not fall under application of Amendment 794. The court referred the motion to Magistrate Judge Veronica Duffy. On January 26, 2017, Magistrate Judge Duffy submitted a report and recommended that Phady’s petition be dismissed and respondent’s motion to dismiss be granted. No objections to the report and recommendation have been filed under 28 U.S.C. ' 2254, Rule 8(b)(3). The court has considered the case de novo and adopts the report and recommendation in full. Therefore, it is ORDERED that the magistrate judge=s report and recommendation (Docket 8) is adopted in full and respondent=s motion to dismiss (Docket 6) is granted. IT IS FURTHER ORDERED that based upon the reasons set forth herein and pursuant to Fed. R. App. P. 22(b), the court finds that petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. ' 2253(c)(2). Therefore, a certificate of appealability is denied. Dated February 17, 2017. BY THE COURT: /s/ Karen E. Schreier KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

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