Kemp v. United States

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION JOSEPH D. KEMP, ) Petitioner, v. CV 123-033 ) (CR 116-084) 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. 13). The Magistrate Judge found Petitioner’s motion was untimely under 28 U.S.C. § 2255(f), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). In his objections, Petitioner acknowledges his motion is untimely but claims the Court “ordered” him to file the present § 2255 petition, which he presumes should excuse untimeliness. Petitioner is referring to the Court’s Order denying his motion for modification of sentence, where the Court explained “to the extent that Defendant wishes to challenge the legality of his sentence, he must file a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.” United States v. Kemp, CR 116-084, doc. no. 41, p. 2 (S.D. Ga. Oct. 11, 2022). However, the Court did not hold AEDPA would not apply to any subsequent § 2255 motion, and the Magistrate Judge correctly found Petitioner did not present any circumstances or arguments to make timely or excuse his late petition under AEDPA.

Accordingly, the Court OVERRULES Petitioner’s objections, ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, GRANTS Respondent’s motion to dismiss, (doc. no. 4), and DISMISSES 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). Upon the foregoing, the Court CLOSES this civil action and DIRECTS the Clerk to enter final judgment in favor of Respondent. SO ORDERED this BST day of July, 2023, at Augusta, Georgia.

/ ee GAIL LCL

La RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT OUTHERN 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 PEaneecne.