Opinion
4:23CV215-SA-JMV
11-27-2023
DAVID LEE HARBIN PETITIONER v. HON. ASHLEY HINES, ET AL. RESPONDENTS
ORDER TRANSFERRING CASE TO THE FIFTH CIRCUIT COURT OF APPEALS
SHARION AYCOCK, U.S. DISTRICT JUDGE
This matter comes before the court, sua sponte, for consideration of the transfer of this cause. David Lee Harbin has submitted a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petitioner was convicted for possession of a firearm by a convicted felon in Washington County Circuit Court on August 21, 2000, and sentenced as a habitual offender to imprisonment for life. The petitioner has filed at least one other unsuccessful 2254 motion concerning the same conviction which he now seeks to challenge. See Harbin v. Epps, 4:03CV428-GHD (N.D. Miss.) The Antiterrorism and Effective Death Penalty Act requires that before a district court files a second or successive petition, “the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” The petitioner has not obtained such an order. Rather than dismissing the petition on this basis, the Fifth Circuit permits 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 ORDERED:
1) That this petition will be transferred to the Fifth Circuit Court of Appeals for the petitioner to seek leave 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) This case is CLOSED.
SO ORDERED.