Rushen v. United States

Full title: HENRY MAX RUSHEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

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

Date published: Jul 8, 2014

CV 113-063 (S.D. Ga. Jul. 8, 2014)

Opinion

CV 113-063

07-08-2014

HENRY MAX RUSHEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

J. RANDAL HALL

(Formerly CR 109-063)

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. 31.) The Court OVERRULES Petitioner's objections because they do not provide any reason to deviate from the Magistrate Judge's conclusions. In keeping with his past filing practice, Petitioner also included several requests for Court action pertaining to discovery (see generally doc. no. 31), which the Court DENIES. Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, DENIES Petitioner's requests for discovery in his reply and his motion for discovery (doc. nos. 23, 26), and DENIES Petitioner's amended motion filed pursuant to 28 U.S.C. § 2255 without an evidentiary hearing.

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 CO A 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. McDanieh, 529 U.S. 473, 482-84 (2000), Petitioner has failed to make the requisite showing. Accordingly, the Court DENIES a COA in this case.¹ 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).

1 "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 8^th day of July, 2014, at Augusta, Georgia.

__________

HONORABEE J. RANDAL HALL

JJNIT1DJSTATES DISTRICT JUDGE

SOUTHERN DISTRICT OF GEORGIA