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Alexander v. State

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

July 31, 2015

ROBERT ALEXANDER, Petitioner,
v.
STATE OF GEORGIA, 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, doc. 8, to which objections have been filed. Doc. 13. Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court.

Further, a prisoner seeking relief under 28 U.S.C. § 2254 must obtain a certificate of appealability ("COA") before appealing the denial of his application for 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 Robert Alexander has failed to make the requisite showing. Accordingly, a COA is DENIED 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.Accordingly, Alexander is not entitled to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3).

The R&R advised the Court to grant the State's Motion to Dismiss Alexander's 28 U.S.C. § 2254 petition, masquerading here as a "Motion Under All Writs Act." Doc. 8, reported at 2015 WL 2255130 (quoting doc. 1). In his objection, petitioner insists that this Court should do what the R&R already explained it cannot: Review and overrule state court adjudications based on state law. Doc. 13 at 1-5. He also raises equitable tolling and "actual innocence" arguments ( id. at 5-16) which go nowhere until he satisfies the custody requirement. He has not.


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