Banda v. United States Of America, No. 1:2013cv00070 - Document 15 (S.D. Ga. 2014)
Court Description: ORDER adopting 9 Report and Recommendation; denying without an evidentiary hearing Petitioner's motion filed pursuant to 28 U.S.C. § 2255; denying Petitioner's request for appointment of counsel; denying a COA in this case; closing this civil action; and directing the Clerk to enter final judgment in favor of Respondent. Signed by Judge J. Randal Hall on 07/09/2014. (thb)
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Banda v. United States Of America Doc. 15 IN THE LTNITED STATESDISTRICTCOURT FORTHE SOUTHERN DISTRICTOF GEORGIA AUGUSTA DIVISION ALFONSOALVEREZ BANDA. Petitioner, cv 113-070 (Formerly 109-133) CR LINITEDSTATESOF AMERICA, Respondent. ORDER After a careful, de novo rcview of the file, the Court concurs$'ith the Magistrate to Judge's Report and Recommendation, which objectionshave been filed (doc. no. 14). Accordingly, the Court ADOPTS the Report and Recommendationof the Magistrate Judge as its opinion, and therefore DENIES without an evidentiary hearing Petitioner's to motion filed pursuant 28 u.s.c. $ 2255.1 Furlher, a federal prisoner must obtain a certificate of appealability C'COA') before appealing the denial of his motion to vacate. This Court "must issue or deny a rPetitioner's request for appoinhnentof counsel in his objections is likewise DENIED. (Doc. no. 14, p. 4.) There is no automatic constitutional right to counsel in habeasproceedings. SeePennsylvania Finley, 481 U.S. 551, 555 (1987); U.S. v. Webb, 565 F.3d 789,794 (llth v. Cir.2009) Q)e/curiam)(citing Barbourv. Haley,47l F.3d 1222,1227( I 1th Cir. 2006)). Rather, appointment of counsel is "a privilege that is justified only by exceptional circumstances[.]" McCalf v. Cook, 495 F. App'x 29,31 (1 1th Cir. 2012) Qter curiam). In light of the Magistrate Judge's thorough analysis and recommendation that the $ 2255 motion be denied, a recommendationwhich is adopted herein as the opinion of the Court, there are no exceptional appointment. warranting the requested circumstances Dockets.Justia.com to certificate appealability of when it entersa final order adverse the applicant." Rule This Courtshouldgranta COA 11(a)to the RulesGoverning Section 2255Proceedings. right." showingof the denialof a constitutional only if the prisoner makesa "substantial set 28 U.S.C. $ 2253(c)(2). For the reasons forth in the Repon and Recommendation, in and in consideration the standards of enunciated Slackv. McDaniel, 529 U.S. 473, 482-84(2000),Petitionerhas failed to make the requisiteshowing. Accordingly,the issues because thereareno non-frivolous CourtDENIES a COA in this case.' Mo.eon'er, Petitioner is would not be takenin goodfaith. Accordingly, to raiseon appeal, appeal an 28 notentitled appeal to informapauperis.See U.S.C. 19t5(a)(3). $ Upon the foregoing,the Courl CLOSES this civil action and DIRECTS the Clerkto enterhnaljudgmentin favorof Respondent. r)JA this 2014. Augusta. at Georgia. SOORDERED 7'day of July, STATES DISTRICT JUDGE T S O U T H E RD I S T R I CO FC E O R C I A N "'If the court denies a certificate, a party may not appeal the denial but may seek a certificate from the court of appealsunder FederalRule of Appellate Procedure22." Rule I 1(a) to the RulesGoverninsSection 2255 Proceedinqs.
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