Demello v. United States of America, No. 1:2014cv00043 - Document 10 (S.D. Ga. 2014)
Court Description: ORDER adopting 7 Report and Recommendations; granting 4 Motion to Dismiss; dismissing this case without an evidentiary hearing on Petitioner's motion filed pursuant to 28 U.S.C. § 2255; and denying a COA in this case. The Court closes this civil action and directs the Clerk to enter final judgment in favor of Respondent. Signed by Judge J. Randal Hall on 08/15/2014. (thb)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION ROBERT J. DEMELLO, JR., Petitioner, CV 114-043 v. (Formerly CR 110-203) 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 objections have been filed (doc. no. 9). Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, GRANTS Respondent's motion to dismiss (doc. no. 4), and DISMISSES this case without an evidentiary hearing on 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 informa pauperis. See 28 U.S.C. § 1915(a)(3). Upon the foregoing, the Court CLOSES this civil action and DIRECTS the Clerk to enter final judgment in favor of Respondent. SO ORDERED this Qdayof Augnrtr HONORKBLE J. RANDAL HALL UNITED STATES DISTRICT JUDGE 1ERN DISTRICT OF GEORGIA '"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.
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
