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)

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