Robertson v. Brown, No. 1:2013cv00036 - Document 26 (S.D. Ga. 2014)

Court Description: ORDER adopting the 23 Report and Recommendations; granting the 7 Motion to Dismiss; dismissing the instant petition brought pursuant to 28 U.S.C. § 2254; and denying a COA in this case. A final judgment shall be entered in favor of Respondent and this civil action shall be closed. Signed by Judge J. Randal Hall on 02/06/2014. (thb)

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Robertson v. Brown Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION PATRICK L. ROBERTSON, Petitioner, CV 113-036 v. DENNIS BROWN, 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. 25). 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. 7), and the instant petition brought pursuant to 28 U.S.C. § 2254 is DISMISSED. Furthermore, a prisoner seeking relief under § 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 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 Dockets.Justia.com 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, Petitioner is not entitled to appeal informa pauperis. See 28 U.S.C. § 1915(a)(3). Upon the foregoing, a final judgment shall be ENTERED in favor of Respondent and this civil action shall be CLOSED. SO ORDERED this££_"Hay of February, 2014, at Augusta, Georgia. HONORABLE J. RANDAL HALL UNITED STATES DISTRICT JUDGE 1ERN DISTRICT OF GEORGIA 1 the courtdenies a certificate, a party maynot appeal the denial but mayseeka "If 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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