Summary
holding that transfer was appropriate when there was not a history of filing successive habeas petitions aimed at the same issue
Summary of this case from Sheppard v. DavisOpinion
No. 3:17-cv-1133-N
06-09-2017
ROBERT BLAKE ADAMS (TDCJ No. 1671436), Petitioner, v. LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
ORDER
The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. 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.
Because the Court lacks jurisdiction over Petitioner's unauthorized successive for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, it is ORDERED, ADJUDGED, and DECREED that the application is TRANSFERRED to the United States Court of Appeals for the Fifth Circuit for appropriate action.
Because the Court is transferring the successive habeas application to the Fifth Circuit for appropriate action, the Court need not address whether Petitioner is entitled to a certificate of appealability ("COA"). 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 [28 U.S.C.] § 2253(c)(1)(B), and the appeal of such an order does not require a COA."); Guel-Rivas v. Stephens, 599 F. App'x 175, 175 (5th Cir. 2015) (per curiam) (applying Fulton's holding to transfer of a successive Section 2254 application).
But in the event that Petitioner does file a notice of appeal, the Court notes that he must pay the filing fee or file a motion for leave proceed in forma pauperis on appeal.
SO ORDERED this 9th day of June, 2017.
/s/_________
DAVID C. GODBEY
UNITED STATES DISTRICT JUDGE