Filed: Apr. 03, 2014
Latest Update: Apr. 03, 2014
Summary: ORDER J. RANDAL HALL, District Judge. Petitioner, an inmate incarcerated at the Federal Correctional Institution in Jesup, Georgia, filed the above-captioned motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. On March 3, 2014, the Magistrate Judge issued a Report and Recommendation ("R&R") in which he recommended that Petitioner's motion be denied without an evidentiary hearing, that the case be closed, and that a final judgment be entered in favor of Respondent
Summary: ORDER J. RANDAL HALL, District Judge. Petitioner, an inmate incarcerated at the Federal Correctional Institution in Jesup, Georgia, filed the above-captioned motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. On March 3, 2014, the Magistrate Judge issued a Report and Recommendation ("R&R") in which he recommended that Petitioner's motion be denied without an evidentiary hearing, that the case be closed, and that a final judgment be entered in favor of Respondent...
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ORDER
J. RANDAL HALL, District Judge.
Petitioner, an inmate incarcerated at the Federal Correctional Institution in Jesup, Georgia, filed the above-captioned motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On March 3, 2014, the Magistrate Judge issued a Report and Recommendation ("R&R") in which he recommended that Petitioner's motion be denied without an evidentiary hearing, that the case be closed, and that a final judgment be entered in favor of Respondent. (Doc. no. 12.) Petitioner was also instructed that any objections to the R&R had to be filed no later than March 20, 2014. (Doc. no 13.) As no objections to the R&R were received by the deadline, the Court adopted the R&R on March 27, 2014, and denied a Certificate of Appealability ("COA"). (Doc.no. 14.)
On March 28, 2014, the Clerk's Office received and filed Petitioner's unsigned objections to the R&R.1 Although the envelope is dated March 25, 2014, the unsigned document is dated March 20, 2014. (See doc. no. 17, p. 4.) Under Houston v. Lack, 487 U.S. 266, 276 (1988), Petitioner's objections are deemed filed on the date of execution and delivery to prison officials for mailing. Although there is no signature attesting to the date of execution and delivery, in an abundance of caution, the Court will address Petitioner's objections to the R&R. Thus, the Court's March 27th Adoption Order is VACATED.
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. 17). None of Petitioner's objections provide any reason to depart from the conclusions in the R&R. As a result, Petitioner's objections are OVERRULED. Accordingly the R&R of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Petitioner's § 2255 motion is DENIED without an evidentiary hearing.
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 R&R, 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, a final judgment shall be ENTERED in favor of Respondent, and this civil action shall be CLOSED.
SO ORDERED.