Opinion
3:21-cv-01724-X
09-23-2021
JUAN LOPEZ, TDCJ No. 2094151, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BRANTLEY STARR, UNITED STATES DISTRICT JUDGE.
The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. [Doc. No. 8]. Lopez filed an objection. Lopez objects to the Magistrate Judge's recommendation that this Court transfer his successive application for a writ of habeas corpus to the Fifth Circuit. Lopez states that he is in fear due to the pandemic and has since sent correspondence to the Fifth Circuit. The District Court reviewed de novo those portions of the proposed findings, conclusions, and recommendation to which objection was made, and reviewed the remaining proposed findings, conclusions, and recommendation for plain error. Finding no error, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. Because this is Lopez's first successive habeas petition, this Court lacks jurisdiction to consider it.
There is no evidence that Lopez timely filed his objection. However, the Court will consider the objection on the merits.
The Court therefore TRANSFERS Petitioner's unauthorized successive 28 U.S.C. § 2254 habeas application to the United States Court of Appeals for the Fifth Circuit for appropriate action. And, because the Court is transferring the application to the Fifth Circuit, a certificate of appealability (a COA) is not necessary.
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 § 2253(c)(1)(B), and the appeal of such an order does not require a COA.”); Guel-Rivas v. Stephens, 599 Fed.Appx. 175, 175 (5th Cir. 2015) (per curiam) (applying Fulton's holding to transfer of a successive Section 2254 application).
IT IS SO ORDERED.