Filed: Jun. 30, 2017
Latest Update: Jun. 30, 2017
Summary: ORDER LISA GODBEY WOOD , District Judge . Before the Court is the Magistrate Judge's Report and Recommendation (R&R), doc. 9, to which Movant Lloyd has filed a "reply," doc. 10. Construing his reply as objections to the R&R, the Court has conducted a careful, de novo review of the file. Movant's objections, recapitulating his arguments that counsel was ineffective and that he was improperly sentenced as an armed career criminal (doc. 10), only repeat the same legal and factual contentio
Summary: ORDER LISA GODBEY WOOD , District Judge . Before the Court is the Magistrate Judge's Report and Recommendation (R&R), doc. 9, to which Movant Lloyd has filed a "reply," doc. 10. Construing his reply as objections to the R&R, the Court has conducted a careful, de novo review of the file. Movant's objections, recapitulating his arguments that counsel was ineffective and that he was improperly sentenced as an armed career criminal (doc. 10), only repeat the same legal and factual contention..
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ORDER
LISA GODBEY WOOD, District Judge.
Before the Court is the Magistrate Judge's Report and Recommendation (R&R), doc. 9, to which Movant Lloyd has filed a "reply," doc. 10. Construing his reply as objections to the R&R, the Court has conducted a careful, de novo review of the file.
Movant's objections, recapitulating his arguments that counsel was ineffective and that he was improperly sentenced as an armed career criminal (doc. 10), only repeat the same legal and factual contentions the R&R addressed (and rejected) in full. He contends that Georgia robbery and possession with intent to distribute marijuana are not predicate convictions for sentencing enhancement under the Armed Career Criminal Act — they are. See doc. 9 at 4-12. He contends that counsel was deficient for failing to argue otherwise — counsel wasn't. See id. at 9 n. 5 & 12 n. 7. Finally he objects that the Court failed to "view" his arguments under Mathis and Descamps (doc. 11 at 3) — it didn't. See doc. 9 at 4-12 (applying the "modified categorical approach" as explained by the Supreme Court in Mathis v. United States, 136 S.Ct. 2243, 2249 (2016) and Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276, 2281)(2013)).1
Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court.2 Further, a prisoner seeking relief under 28 U.S.C. § 2255 must obtain a certificate of appealability ("COA") before appealing the denial of his application for writ of habeas corpus. 28 U.S.C. § 2253(c)(1)(B). 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), movant has failed to make the requisite showing. Accordingly, a COA is DENIED in this case.3 Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith and movant is not entitled to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3).
SO ORDERED.
