Filed: Apr. 23, 2012
Latest Update: Apr. 23, 2012
Summary: ORDER J. RANDAL HALL, District Judge. 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. 1 Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, the instant motion to vacate, set aside, or correct Petitioner's sentence is DISMISSED. 2 Further, a federal prisoner must obtain a certificate of appealability ("COX') befo
Summary: ORDER J. RANDAL HALL, District Judge. 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. 1 Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, the instant motion to vacate, set aside, or correct Petitioner's sentence is DISMISSED. 2 Further, a federal prisoner must obtain a certificate of appealability ("COX') befor..
More
ORDER
J. RANDAL HALL, District Judge.
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.1 Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, the instant motion to vacate, set aside, or correct Petitioner's sentence is DISMISSED.2
Further, a federal prisoner must obtain a certificate of appealability ("COX') 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 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.3 Moreover, because there are 110 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, this civil action is CLOSED.
SO ORDERED.
FootNotes
1. Petitioner requested an extension of time in which to file objections, and the Magistrate Judge granted his request in part, extending the objection deadline to April 9, 2012. (Doc. nos. 6, 7.) However, Petitioner failed to file objections by the extended deadline.
2. The instant motion is styled as a "Motion for Re-Sentence Instanter." (Doc. no. 1.) In accordance with the requirements of Castro v. United States, 540 U.S. 375, 377 (2003), the motion was recharacterized as a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct Petitioner's sentence. (see doc. nos. 2-4.)
3. "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.
