Pierce v. United States of America (INMATE 3)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION DAMIEN MICHAEL PIERCE, )

) Petitioner, )

) v. ) CASE NO. 3:16-CV-989-WKW

) UNITED STATES OF AMERICA, )

) Respondent. )

ORDER The Magistrate Judge filed a Recommendation to which Petitioner Damien Michael Pierce timely objected. (Doc. # 50.) Based upon a de novo review of those portions of the Recommendation to which Petitioner objects, see 28 U.S.C. § 636, the objections lack merit. The objections mirror the arguments Mr. Pierce previously made to the Magistrate Judge, and the Recommendation adequately addresses and properly rejects the underpinnings of Mr. Pierce’s objections without need for further elaboration. Accordingly, it is ORDERED as follows:

(1) Mr. Pierce’s objections (Doc. # 63) are OVERRULED; (2) The Recommendation (Doc. # 50) is ADOPTED; (3) This action is DISMISSED with prejudice.

Final judgment will be entered separately.

A certificate of appealability will not be issued. For a petitioner to obtain a certificate of appealability, he must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing requires that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and internal quotation marks omitted). And, where a petition is denied on procedural grounds, he “must show not only that one or more of the claims he has raised presents a substantial constitutional issue, but also that there is a substantial issue about the correctness of the procedural ground on which the petition was denied.” Gordon v. Sec’y, Dep’t of Corrs., 479 F.3d 1299, 1300 (11th Cir. 2007) (citations omitted). “A ‘substantial question’ about the procedural ruling means that the correctness of it under the law as it now stands is debatable among jurists of reason.” Id.

Because reasonable jurists would not find the denial of Petitioner’s 28 U.S.C. § 2255 motion debatable, a certificate of appealability is DENIED.

DONE this 3rd day of June, 2021.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE