Malone v. United States of America, No. 1:2013cv00099 - Document 13 (S.D. Ga. 2014)

Court Description: ORDER ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations; denying 5 Motion to Dismiss filed by Jaequan S. Malone; denying 8 Motion to Strike filed by Jaequan S. Malone; granting 3 Motion to Dismiss filed by United Stat es of America; dismissing the instant 28 U.S.C. § 2255 petition; denying a Certificate of Appealability; stating that Petitioner would not be entitled to appeal in forma pauperis; directing that a final judgment shall be entered in favor of Respondent; and closing this civil action. Signed by Judge J. Randal Hall on 02/18/2014. (jah)

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Malone v. United States of America Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION JAEQUAN S. MALONE, Petitioner, CV 113-099 v. (Formerly CR 112-064) UNITED STATES OF AMERICA, Respondent. ORDER After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which no objections have been filed. 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. 3), Petitioner's motion to dismiss and motion to strike are DENIED (doc. nos. 5, 8), and the instant § 2255 motion is DISMISSED. Further, a federal prisoner must obtain a certificate of appealability ("COA") before appealing the denial of his motion to vacate. 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 2255 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, Dockets.Justia.com 482-84 (2000), Petitioner has failed to 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 _/| day ofFebruary, 2014, at Augusta, Georgia. HONORABLE J. RANDAL HALL UNITEDJSTATES DISTRICT JUDGE .SOUTHERN DISTRICT OF GEORGIA 1"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 2255 Proceedings.

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