Opinion
3:22-cv-634-M
04-18-2022
DIRECTOR, TDCJ-CID, Respondent. v. LEON TRAVIS HURD, TDCJ No. 696480, Petitioner,
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BARBARA M. G. LYNN, CHIEF JUDGE.
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation in this case. An objection was filed by Petitioner, through which he clarifies that he is not seeking habeas relief as to his state convictions for possession with intent to deliver cocaine. The District Court reviewed de novo those portions of the proposed Findings, Conclusions, and Recommendation to which objection was made, and reviewed the remaining proposed Findings, Conclusions, and Recommendation for plain error. The Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge but elects to TRANSFER this case to the United States Court of Appeals for the Fifth Circuit as to Petitioner's aggravated assault conviction, to determine authorization to file a second or successive habeas application.
Because the Court is transferring this case to the Fifth Circuit, a certificate of appealability (COA) is not necessary. See United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015) (“[A] transfer order under 28 U.S.C. § 1631 is not a final order within the meaning of § 2253(c)(1)(B), and the appeal of such an order does not require a COA.”); Guel-Rivas v. Stephens, 599 Fed.Appx. 175, 175 (5th Cir. 2015) (per curiam) (applying Fulton's holding to transfer of a successive Section 2254 application).
SO ORDERED.