Houston v. Miss. Dep't of Corr.

Full title: JUDY HOUSTON PETITIONER v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL…

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI OXFORD DIVISION

Date published: Mar 17, 2021

No. 3:19CV127-MPM-RP (N.D. Miss. Mar. 17, 2021)

Opinion

No. 3:19CV127-MPM-RP

03-17-2021

JUDY HOUSTON PETITIONER v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL. RESPONDENTS

MICHAEL P. MILLS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI

ORDER GRANTING STATE'S MOTION TO DISMISS, TRANSFERRING PETITION TO THE FIFTH CIRCUIT COURT OF APPEALS

This matter comes before the court on the motion [8] by the State to dismiss the instant petition for a writ of habeas corpus for want of subject matter jurisdiction,¹ as the petition is successive. Judy Houston has submitted a petition for a writ of habeas corpus under 28 U.S.C. § 2254. She was convicted in 1990 for capital murder and two counts of aggravated assault. The petitioner has filed at least one other unsuccessful 2254 petition concerning the same conviction she now seeks to challenge. See Houston v. State of Mississippi, 3:13CV196-GHD-JMV.

1 The court will not address the State's other grounds for dismissal, as the want of jurisdiction precludes the court from considering those grounds. --------

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. As such, the State's Motion [8] to Dismiss for want of subject matter jurisdiction will be granted.

Rather than dismissing the petition on this basis, the Fifth Circuit permits district courts to transfer the petition for consideration under 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 the State's Motion [8] to Dismiss is GRANTED;

(2) 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;

(3) 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

(4) This case is CLOSED.

SO ORDERED, this, the 17th day of March, 2021.

/s/ MICHAEL P. MILLS

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI