Opinion
CV 117-124
08-07-2018
JEROME GREENE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
(Formerly CR 116-056)
ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation ("R&R"), to which objections have been filed. (Doc. no. 10.) In his objections, Petitioner argues an evidentiary hearing is necessary regarding his lost appeal claim because there is a factual dispute as to whether Petitioner instructed trial counsel to file a notice of appeal. (Doc. no. 10, p. 5.)
As the Magistrate Judge stated in his R&R, Petitioner signed a notice of post-conviction consultation certification indicating he decided not to file an appeal after trial counsel explained the consequences of not doing so. (Doc. no. 7, pp. 19-20); see also United States v. Greene, CR 116-056, doc. no. 14 (S.D. Ga. Jan. 10, 2017). "It is well-settled that the district court is not required to grant an evidentiary hearing when the defendant's claims are affirmatively contradicted by the record evidence . . . ." Rosin v. United States, 786 F.3d 873, 878 (11th Cir. 2015). Because the notice of post-conviction consultation certification affirmatively contradicts Petitioner's self-serving contention he instructed trial counsel to file a notice of appeal, he is not entitled to a hearing on this claim. See Newham v. United States, Nos. CV 216-009, CR 214-012, 2017 WL 1823152, at *9 (S.D. Ga. May 5, 2017), adopted by 2017 WL 2589584 (S.D. Ga. June 14, 2017); Eubank v. United States, Nos. CV 416-054, CR 414-005, 2016 WL 750344, at *1 (S.D. Ga. Feb. 25, 2016), adopted by 2016 WL 1464578 (S.D. Ga. Apr. 13, 2016).
Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, and therefore DENIES Petitioner's motion filed pursuant to 28 U.S.C. § 2255.
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. 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).
"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. --------
Upon the foregoing, the Court CLOSES this civil action and DIRECTS the Clerk to enter final judgment in favor of Respondent.
SO ORDERED this 7th day of August, 2018, at Augusta, Georgia.
/s/_________
J. RANDAL HALL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA