JOHNSON v. FORT ( 2022 )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION DERRICK A. JOHNSON, ) ) Petitioner, ) ) v. ) CIVIL ACTION NO. 5:22-CV-50 (MTT) ) KARL FORT, ) ) Respondent. ) ) ORDER Petitioner Derrick Johnson moves for a Certificate of Appealability (“COA”). Doc. 24. United States Magistrate Judge Charles H. Weigle recommended dismissing Johnson’s petition for writ of habeas corpus (Doc. 1) as untimely and denying a COA. Doc. 16. Johnson objected, so the Court reviewed the Recommendation de novo. Docs. 20; 21. After review, the Court adopted the proposed findings, conclusions, and recommendations of the Magistrate Judge, denied a COA, and denied any motion to proceed in forma pauperis on appeal. Doc. 21. Because the Court has already denied a COA, Johnson’s current motion for a COA is moot. Id. To any extent that Johnson requests the Court to reconsider its decision denying a COA, Johnson has not shown any basis for reconsideration. Johnson states a COA should issue “because it is debatable whether or not [he] was granted the right to file an out-of-time appeal.” Doc. 24 at 2. The record shows that Johnson was not granted the right to file an out-of-time appeal. See Docs. 16 at 1-2; 13-4; 13-5; 13-6; 13-7. Thus, his § 2254 petition was untimely. When the Court dismisses a § 2254 on procedural grounds without reaching the underlying constitutional claims, as it did here, the Court should grant a COA only if the petitioner demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Johnson has not made such a showing. Accordingly, Johnson’s motion for a COA (Doc. 24) is DENIED. SO ORDERED, this 15th day of December, 2022. S/ Marc T. Treadwell MARC T. TREADWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT