Johnson v. United States of America

Filing 140

MEMORANDUM OPINION AND ORDER. The court accepts and incorporates the Magistrate Judge's 138 Proposed Findings and Recommendation; DENIES the petitioner's 135 Section 2255 motion; and DENIES a certificate of appealability. Signed by Judge Joseph R. Goodwin on 12/10/2009. (cc: petitioner; Magistrate Judge Stanley; attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION FLORENCE M. JOHNSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. CIVIL ACTION NO. 2:09-cv-01164 (Criminal No. 2:05-cr-00118-02)

MEMORANDUM OPINION AND ORDER Pending before the court is the petitioner's motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence [Docket 135]. This action was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to this court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has submitted findings of fact and has recommended that the court deny the petitioner's § 2555 motion. The petitioner timely filed written objections to the Magistrate Judge's findings of fact and recommendation. Having reviewed the petitioner's objections de novo, the court FINDS that they are without merit. Accordingly, the court accepts and incorporates herein the findings and recommendation of the Magistrate Judge, and DENIES the petitioner's § 2255 motion [Docket 135]. Additionally, the court has considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A certificate will not be granted unless there is "a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this court is

debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that the governing standard is not satisfied in this instance. Accordingly, the court DENIES a certificate of appealability. The court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge Stanley, counsel of record, and any unrepresented party.

ENTER:

December 10, 2009

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