Opinion
CRIMINAL ACTION NO. 3:04-CR-0278(01)-G
12-09-2020
UNITED STATES OF AMERICA, Plaintiff, v. RICKY WAYNE TOLBERT, JR., Defendant.
ORDER ACCEPTING FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. See docket entry 57. No objections were filed. The district court reviewed the proposed findings, conclusions and recommendation for plain error. Finding none, the court ACCEPTS the Findings, Conclusions and Recommendation of the United States Magistrate Judge.
It is therefore ORDERED that the defendant's motion to appoint counsel (docket entry 46) is CONSTRUED as a successive Section 2255 motion, and that it is TRANSFERRED to the United States Court of Appeals for the Fifth Circuit to seek authorization to file a successive Section 2255 motion. See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3); 28 U.S.C. § 1631.
An order transferring a successive application to the court of appeals is not a final order requiring a certificate of appealability. See United States v. Fulton, 780 F.3d 683, 688 (5th Cir.), cert. denied, 577 U.S. 967 (2015); Brewer v. Stephens, 605 Fed. Appx. 417 (5th Cir.) (per curiam), cert. dismissed, 577 U.S. 983 (2015). --------
The Clerk of the Court is DIRECTED to (1) terminate the motion to appoint counsel in the criminal case (docket entry 46), (2) open a new Section 2255 action for statistical purposes based on the motion to appoint counsel (nature of suit code 510, with direct assignment per Special Order 3-250 to Senior United States District Judge A. Joe Fish and United States Magistrate Judge Renée Harris Toliver), and (3) effect the transfer in the newly opened case.
SO ORDERED. December 9, 2020.
/s/ _________
A. JOE FISH
Senior United States District Judge