-WLB McDaniel v. Williams, No. 1:2011cv00100 - Document 19 (S.D. Ga. 2012)

Court Description: ORDER adopting 16 Report and Recommendations; granting 10 Motion to Dismiss; denying 13 Motion to Dismiss; denying COA in this case; dismissing the instant § 2254 petition; and directing that a final judgment be entered in favor of Responent. Signed by Judge J. Randal Hall on 04/13/2012. (thb)

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-WLB McDaniel v. Williams Doc. 19 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION RODRIQUEZ ANTRON MCDANIEL, Petitioner, V. CV 111-100 STANLEY WILLIAMS, Warden, Respondent. ORDER After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which objections have been filed (doc. no. 18). Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Respondent's motion to dismiss is GRANTED (doc. no. 10),' and Petitioner's motion to dismiss Respondent's motion to dismiss is DENIED (doc. no. 13). Furthermore, a prisoner seeking relief under 28 U.S.C. § 2254 must obtain a certificate of appealability ("COA") before appealing the denial of his application for a writ of habeas corpus. This Court "must issue or deny a certificate of appealability when it enters 'Due to an apparent scrivener's error, the Report and Recommendation incorrectly refers to Respondent's motion to dismiss as Petitioner's motion to dismiss. However, in light of the accompanying document number reference and the analysis, it is apparent that the Magistrate Judge recommended that Respondent's motion to dismiss be granted. ( See doc. no. 16, pp. 3-6, 10.) Dockets.Justia.com a final order adverse to the applicant." Rule 11(a) to the Rules Governing Section 2254 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 in consideration of the standards enunciated in Slack v. McDaniel, 529 U.S. 473, 482-84 (2000), Petitioner has failed to make the requisite showing. Accordingly, a COA is DENIED in this case.2 Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Accordingly, Petitioner is not entitled to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3). Upon the foregoing, the instant § 2254 petition is DISMISSED, and a final judgment shall be ENTERED in favor of Respondent. SO ORDERED this ay of April, 2012, at Augusta, Georgia. HONDABLE.'Y. RANDAL HALL UNIT$) STATES DISTRICT JUDGE SOTfTHERN DISTRICT OF GEORGIA 2"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 2254 Proceedings. 2

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