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Martinez v. Medlin

United States District Court, S.D. Georgia, Dublin Division

August 13, 2014

RODOLFO L. MARTINEZ, a/k/a Zenjth Vivas, Petitioner,
v.
JASON D. MEDLIN, Respondent.

ORDER

BRIAN K. EPPS, Magistrate Judge.

After a careful, de novo review of the file, the Courtconcurswith the Magistrate Judge's Report and Recommendation, to which no objections have been filed. Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judgeas its opinion, DENIES AS MOOT Petitioner'smotion to proceed in forma pauperis , and DISMISSES without prejudice the instant petition.

Whether Petitioner is seeking relief under 28 U.S.C.§ 2254 or 28 U.S.C. § 2241, he must obtain a cerlificate of appealability ("COA') before appealing the denial of his application for a writ of habeas corpus. See Sawyer v. Holder, 326 F.3d 1363 , 1364 n.3 (11th Cir. 2003) ("[S]tate prisoners proceeding under § 2241 must obtain a COA to appeal."); Rule 11(a) to the Rules Governing Section 2254 Proceedings ("[The Court] must issue or deny a cenificate of appealability when it enters a final order adverse to the applicant."). 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, 482-84 (2000), Petitioner has failed to make the requisiteshowing. Accordingly, the Court DENIES a COA in this case.[1] Moreover, because thereareno 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, the Court CLOSES this civil action.

SO ORDERED


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