Opinion
CRIMINAL NO. 06-00206-CG-B, CIVIL ACTION NO. 09-00629-CG.
January 31, 2011
REPORT AND RECOMENDATION
This action, which has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(3) , is before the Court on Petitioner Quang Van Nguyen's Motion for Certificate of Appealability (Doc. 80) and Motion for Leave to Appeal In Forma Pauperis (Doc. 81). In an Order dated December 28, 2010 (Doc. 78), the District Court denied Nguyen's petition seeking habeas relief under 28 U.S.C. § 2255, and held that he is not entitled to a Certificate of Appealability. In light of the Court's Order, Nguyen's Motion for Certificate of Appealability (Doc. 80) is due to be denied. Because Nguyen has not made the requisite showing for the issuance of a certificate of appealability, the undersigned finds that there are no non-frivolous issues to raise on appeal; thus, his Motion for Leave to Appeal In Forma Pauperis should likewise be denied. Accordingly, the undersigned recommends that Nguyen's Motion for Certificate of Appealability and Motion for Leave to Appeal In Forma Pauperis be denied.
Since this recommendation is made after a referral pursuant to 28 U.S.C. § 636(b)(3), the plaintiff does not have an opportunity to file objections. Minetti v. Port of Seattle, 152 F. 3d 1113, 1114 (9th Cir. 1998) ("Section 636(b)(3) does not provide a party with ten days to file written objections with the district court."); United States v. Woods, 2009 U.S. Dist. LEXIS 117531 (S.D. Ala. Dec. 17, 2009); United States v. Gibbs, 2008 U.S. Dist. LEXIS 105254 (S.D. Ala. Dec. 23, 2008). The Clerk is therefore directed to refer this matter to the District Judge for her consideration without the necessity of a waiting period.
DONE this the 31st day of January, 2011.