United States District Court, M.D. Georgia, Macon Division
Corpus 28 U.S.C. § 2254
T. TREADWELL, JUDGE
Judge Charles H. Weigle recommends dismissing the
Petitioner's second Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 that he has filed with this Court
(Doc. 1) and motion to dismiss judgment (Doc. 8). Doc. 10.
The Petitioner objected to the Recommendation. Doc. 11.
Pursuant to 28 U.S.C. § 636(b)(1), the Court has
reviewed the Recommendation, considered the Petitioner's
objection, and has made a de novo determination of the
portions of the Recommendation to which the Petitioner
Petitioner's objection is largely citations of
inapplicable case law. See generally Doc. 11. As
stated by the Magistrate Judge, the “Petitioner has not
been granted permission to file a second or successive habeas
petition by the Eleventh Circuit, ” and this Court thus
“lacks jurisdiction to consider these
claims.” Id. at 12. To the extent that the
Petitioner wishes to make a Rule 60(b) motion, he has not
“shown that he is entitled to relief.”
Court has reviewed the Recommendation, and the Court accepts
the findings, conclusions, and recommendations of the
Magistrate Judge. The Recommendation (Doc. 11) is
ADOPTED and made the order of this Court.
Accordingly, the Petitioner's habeas petition (Doc. 1) is
DISMISSED without prejudice, and his motion
to dismiss judgment (Doc. 8) is DENIED.
Magistrate Judge also recommends that the Court deny a
certificate of appealability. Id. at 12. A
petitioner seeking to appeal a district court's final
order denying his 28 U.S.C. § 2254 petition has no
absolute entitlement to appeal and must obtain a certificate
of appealability (“COA”). 28 U.S.C. §
2253(c)(2); see also Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). Rule 11 of the Rules Governing Section
2254 Cases in the United States District Courts provides that
“[t]he district court must issue or deny a [COA] when
it enters a final order adverse to the applicant, ” and
if a COA is issued, then “the court must state the
specific issue or issues that satisfy the showing required by
28 U.S.C. § 2253(c)(2).”
to 28 U.S.C. § 2253(c)(2), a COA may issue “only
if the applicant has made a substantial showing of the denial
of a constitutional right.” This requires a
demonstration that “jurists of reason could disagree
with the district court's resolution of [a
petitioner's] constitutional claims or that jurists could
conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citation omitted).
The “petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Id.
at 338 (citation omitted). When the Court denies a habeas
petition on procedural grounds without reaching the
underlying constitutional claims, as in this case, the
Petitioner must show that “jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling, ” and (2) “jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right.”
Slack, 529 U.S. at 484. The Petitioner has not made
these showings and has not objected to this part of the
Recommendation. See generally Doc. 11. Therefore,
the Petitioner is DENIED a COA.
because there are no non-frivolous issues to raise on appeal,
an appeal would not be taken in good faith. See 28
U.S.C. § 1915(a)(3) (“An appeal may not be taken
in forma pauperis if the trial court certifies in writing
that it is not taken in good faith.”) Accordingly, any
motion to proceed in forma pauperis on appeal is
Recommendation (Doc. 10) is ADOPTED and made
the order of this Court. Accordingly, the Petitioner's
habeas petition (Doc. 1) is DISMISSED without
prejudice, and his motion to dismiss judgment (Doc.
8) is DENIED. Any certificate of
appealability is DENIED, and any motion to
proceed in forma pauperis on appeal is