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Butler v. Carter

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

April 23, 2015

WARREN ANDREW BUTLER, Petitioner,
v.
ALAN CARTER, Warden, Respondent.

ORDER

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 objections have been filed (doc. no. 11). Accordingly, the Court ADOPTS the Report andRecommendation of the Magistrate Judge as its opinion. Therefore, Petitioner's motion to proceed informa pauperis is DENIED AS MOOT (doc. no. 2), and this petition filed pursuant to 28 U.S.C. § 2254 is DISMISSED as untimely.

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 informa pauperis. See 28 U.S.C. § 1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action.

SO ORDERED.


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