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Smith v. United States

January 16, 2007

PHILLIP M. SMITH, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: R. Allan Edgar United States District Judge

MEMORANDUM AND ORDER

Petitioner Phillip M. Smith, a federal prisoner, has filed a pro se motion for post-conviction relief under 28 U.S.C. § 2255. The United States of America opposes the motion. The Court referred the case to Magistrate Judge Susan K. Lee for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). On December 1, 2006, Magistrate Judge Lee submitted her report and recommendation. [Doc. No. 8]. The parties have not timely filed any objections.

After reviewing the record, the Court ACCEPTS and ADOPTS the report and recommendation pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the motion for post-conviction relief brought under 28 U.S.C. § 2255 shall be DENIED and DISMISSED WITH PREJUDICE.

Any appeal from this decision by petitioner Smith would be frivolous and not taken in good faith. Any application by petitioner Smith for leave to proceed on appeal in forma pauperis shall be denied pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a).

If petitioner Smith files a notice of appeal, it shall be treated as an application for a certificate of appealability which will be denied pursuant to 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b)(1) because he has not made a substantial showing of the denial of a constitutional right.

A separate judgment will be entered.

SO ORDERED.

ENTER this the 16th day January, 2007.

20070116

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