Phillips v. United States Of America, No. 3:2010cv00072 - Document 12 (S.D. Ga. 2011)
Court Description: ORDER adopting the 10 Report and Recommendations; denying 2 Motion to Subpoena Duces Tecum for the Complete Medical Records and Death Certificate of Althea L. Buafo, deceased, during the period she represented Defendant herein, Nov. 27, 2006 to July 10, 2009; granting 5 Motion to Dismiss; dismissing the instant § 2255 motion; that final judgment be entered in favor of Respondent; and closing this civil action. Signed by Judge Dudley H. Bowen on 07/22/2011. (thb)
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Phillips v. United States Of America Doc. 12 FILED u IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION 2OU JUL 22 P 1: CLERKW4 BRONSON FLANDERS PHILLIPS, Petitioner, V. CV 310-072 (Formerly CR 306-016) UNITED STATES OF AMERICA, Respondent, ORDER After a careful, de novo review of the file. the Court concurs with the Magistrate Judge's Report and Recommendation, to which no objections have been filed. Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Petitioner's motion for a subpoena is DENIED (doc. no. 2), and Respondent's motion to dismiss Petitioners motion brought pursuant to 28 U.S.C. § 2255 is GRANTED (doc. no. 5). 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 ofthe denial of constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the Report and Recommendation, and in consideration of the Dockets.Justia.com 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,' 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). Upon the foregoing, the instant § 2255 motion is DISMISSED, afmal judgment shall be ENTERED in favor of Respondent, and this civil action shall be CLOSED. SO ORDERED this 99 day of July, 2011, at Augusta, Georgia. UNITED STATES DISTRICT "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 1 1(a) to the Rules Governing Section 2255 Proceedings.
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