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Evans v. United States

February 12, 2007

KENNETH J. EVANS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

Edgar / Carter

MEMORANDUM AND ORDER

Petitioner Kenneth J. Evans, a federal prisoner, 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 William B. Mitchell Carter for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

On January 12, 2007, Magistrate Judge Carter submitted a report and recommendation. [Doc. No. 8]. The parties have not timely filed any objections. A copy of the report and recommendation was mailed to petitioner Evans at his last known mailing address but the envelope has been returned by the Untied States Postal Service marked "Refused."

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 Evans would be frivolous and not taken in good faith. Any application by petitioner Evans 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 Evans 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.

20070212

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