Williams v. Owens

Full title: JOSEPH WILLIAMS, Petitioner, v. BRIAN OWENS, Warden, Georgia Department of…

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

Date published: Feb 18, 2014

CV 113-157 (S.D. Ga. Feb. 18, 2014)

Opinion

CV 113-157

02-18-2014

JOSEPH WILLIAMS, Petitioner, v. BRIAN OWENS, Warden, Georgia Department of Corrections, et al., Respondents.

J. RANDAL HALL

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. 9).¹ Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Respondents Perry and Olens are DISMISSED as improper Respondents, and the instant petition brought pursuant to 28 U.S.C. § 2254 is DISMISSED.

1 In his objections, Petitioner raises the same timeliness arguments as in his petition, which are based on Trevino v. Thaler, 133 S. Ct. 1911 (U.S. 2013) and Martinez v. Ryan, 132 S. Ct. 1309 (U.S. 2012). Because the Magistrate Judge thoroughly considered and addressed these arguments in the Report and Recommendation, Petitioner's objections are OVERRULED.

Furthermore, 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, a COA is DENIED 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, the parties 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 2254 Proceedings.
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Upon the foregoing, this civil action shall be CLOSED.

SO ORDERED this 18^th day of February, 2014, at Augusta, Georgia.

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HONORABLE J. RANDAL HALL

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF GEORGIA