Opinion
CIVIL ACTION NO. 3:15CV95-MPM-JMV
06-18-2015
ANDRE DAVIS PETITIONER v. MICHAEL DONAHUE and ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI RESPONDENTS
ORDER TRANSFERRING CASE TO THE FIFTH CIRCUIT COURT OF APPEALS
This matter comes before the Court, sua sponte, for consideration of the transfer of this cause. Andre Davis has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his sentence of life without the possibility of parole for his conviction of capital murder.
Davis has filed at least one other unsuccessful § 2254 motion concerning the same sentence which he now seeks to challenge. Davis v. Easterling, 2:11cv159-MPM-JMV (N.D. Miss. 2012). The Antiterrorism and Effective Death Penalty Act requires that an applicant seeking to file a second or successive petition first "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Davis has not obtained such an order. Rather than dismissing the petition on this basis, the Fifth Circuit has allowed district courts to transfer the petition for consideration pursuant to 28 U.S.C. § 2244(a) and (b)(3)(C). See In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). Therefore, in the interest of justice and judicial economy, it is hereby ORDERED:
1) That this petition shall be transferred to the Fifth Circuit Court of Appeals for the petitioner to seek permission to file this successive § 2254 petition;
2) That the Clerk of Court is directed to transfer this petition and the entire record to the Fifth Circuit Court of Appeals in accordance with 28 U.S.C. § 2244(a) and (b)(3)(C), and In re Epps, 127 F.3d at 365; and
3) That this case is CLOSED.
THIS the 18th day of June, 2015.
/s/ Michael P. Mills
MICHAEL P. MILLS
U.S. DISTRICT JUDGE