Walker v. United States

Full title: ANDREW CORNELIUS WALKER, Petitioner, v. UNITED STATES OF AMERICA…

Court: UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION

Date published: Aug 6, 2014

CV 114-010 (S.D. Ga. Aug. 6, 2014)

Opinion

CV 114-010

08-06-2014

ANDREW CORNELIUS WALKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

HONORABLE J. RANDAL HALL UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA

(Formerly CR 112-119 & CR 112-217)

ORDER

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). Petitioner does not offer any new information, evidence, or argument that warrants deviating from the Magistrate Judge's recommendation. Thus, the Court OVERRULES the objections.¹ Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, GRANTS Respondent's motion to dismiss (doc. no. 4), and DISMISSES this case without an evidentiary hearing on Petitioner's motion filed pursuant to 28 U.S.C. § 2255.

1 The Court likewise OVERRULES Petitioner's objection to the Magistrate Judge's denial of his request for appointment of counsel in the July 14 Order (doc. no. 8) entered along with the Report and Recommendation. (Doc. no. 11, pp. 4-5.) When reviewing a Magistrate Judge's Order on a nondispositive matter, a district judge "must . . . modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a); Traylor v. Howard, 433 F. App'x 835, 835-36 104 (11th Cir. 2011) (per curiam). As the Magistrate Judge correctly explained, there is no automatic constitutional right to counsel in habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Rather, appointment of counsel is "a privilege that is justified only by exceptional circumstances[.]" McCall v. Cook, 495 F. App'x 29, 31 (11th Cir. 2012) (per curiam). In light of the Magistrate Judge's thorough analysis and recommendation that the § 2255 motion be dismissed, a recommendation which is adopted herein as the opinion of the Court, there are no exceptional circumstances warranting the requested appointment.

Further, a federal prisoner must obtain a certificate of appealability ("COA") before appealing the denial of his motion to vacate. 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 2255 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.² Moreover, because there are no 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).

2 "If the court denies a certificate, a party may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a) to the Rules Governing Section 2255 Proceedings.
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Upon the foregoing, the Court CLOSES this civil action and DIRECTS the Clerk to enter final judgment in favor of Respondent.

SO ORDERED this 6^th day of August, 2014, at Augusta, Georgia.

/s/_________

HONORABLE J. RANDAL HALL

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF GEORGIA