McMillan v. Calvin D. Norton

Full title: DANIEL McMILLAN, Petitioner v. CALVIN D. NORTON, Warden, Respondent

Court: United States District Court, M.D. Georgia, Valdosta Division

Date published: Oct 19, 2009

CIVIL ACTION NO.: 7:06-CV-47 (HL) (M.D. Ga. Oct. 19, 2009)

Opinion

CIVIL ACTION NO.: 7:06-CV-47 (HL).

October 19, 2009

ORDER

HUGH LAWSON, District Judge

Before the Court is petitioner DANIEL McMILLAN'S notice of appeal (R. at 41) and application for a certificate of appealability ("COA") (R. at 42) from the Court's September 17, 2009 Order, which adopted the United States Magistrate Judge's Recommendation that petitioner's 28 U.S.C. § 2254 motion be denied.

The Eleventh Circuit Court of Appeals has mandated that the Court construe petitioner's notice of appeal as a COA pursuant to 28 U.S.C. § 2253(c). Edwards v. United States , 114 F.3d 1083 (11th Cir. 1997). Under section 2253(c), a COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right. For the reasons stated in the United States Magistrate Judge's Recommendation and this Court's Order accepting the same, the Court finds that petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Accordingly, the application for a COA is DENIED.

Also before the Court is petitioner's motion to appoint counsel (R. at 43). Said motion is DENIED AS MOOT.

SO ORDERED.