Hays v. Cain

Full title: HOWARD HAYS PETITIONER v. BURL CAIN RESPONDENT

Court: United States District Court, N.D. Mississippi, Greenville Division

Date published: Aug 23, 2021

4:21CV92-NBB-JMV (N.D. Miss. Aug. 23, 2021)

Opinion

4:21CV92-NBB-JMV

08-23-2021

HOWARD HAYS PETITIONER v. BURL CAIN RESPONDENT

NEAL B. BIGGERS, SENIOR U.S. DISTRICT JUDGE

ORDER TRANSFERRING CASE TO THE FIFTH CIRCUIT COURT OF APPEALS

NEAL B. BIGGERS, SENIOR U.S. DISTRICT JUDGE

This matter comes before the court, sua sponte, for consideration of the transfer of this cause. Howard Hays has submitted a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petitioner was convicted for burglary and grand larceny on October 26, 2015. The petitioner has filed at least one other unsuccessful 2254 motion concerning the same conviction which he now seeks to challenge. Hays v. Hall, 4:17CV119-DMB-JMV. 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 (5^th 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.