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Smith v. Philbin

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

February 27, 2015

LAWRENCE RUPERT SMITH, Petitioner,
v.
WARDEN EDWARD TED PHILBIN, Jimmy Autry State Prison, Respondent.

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. Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, DENIES AS MOOT Petitioner's motion to proceed in forma pauperis (doc. no. 2), and DISMISSES the instant petition brought pursuant to 28U.S.C. § 2254.

A prisoner seeking relief under § 2254 must obtain a certificate of appealability ("COA") before appealing the denial of his application for a writ of habeas corpus. 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 2254 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, 482-84 (2000), Petitioner has failed to make the requisite showing. Accordingly, the Court DENIES a COA 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, and 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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