Opinion
Civil Action No. 05-cv-01851-OES.
November 1, 2005
ORDER TO TRANSFER APPLICATION TO COURT OF APPEALS
Applicant Bobby D. Hicks is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Colorado State Penitentiary in Canon City, Colorado. He filed pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. 2005) challenging a 1996 Colorado state conviction. For the reasons stated below, the application will be transferred to the United States Court of Appeals for the Tenth Circuit (Tenth Circuit).
Mr. Hicks previously has sought habeas corpus relief in this Court pursuant to 28 U.S.C. § 2254. See Hicks v. Reid, No. 05-cv-00521-ZLW (D. Colo. May 10, 2005). In 05-cv-00521-ZLW, Mr. Hicks challenged the same state court conviction he challenges in the instant action. The Court denied the habeas corpus application in 05-cv-00521-ZLW for failure to exhaust state remedies. Mr. Hicks did not appeal from the dismissal.
Pursuant to 28 U.S.C. § 2244(b)(3), Mr. Hicks must apply to the Tenth Circuit for an order authorizing this Court to consider his second or successive application. Mr. Hicks alleges that he has not obtained the necessary authorization from the Tenth Circuit. Therefore, the Court must transfer this action to the Tenth Circuit pursuant to 28 U.S.C. § 1631 (1994). See Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam). Accordingly, it is
ORDERED that the clerk of this Court is directed to transfer the instant action to the United States Court of Appeals for the Tenth Circuit pursuant to 28 U.S.C. § 1631.