Ellis v. Turner et al

Filing 5

ORDER transferring petition to U.S. Court of Appeals - 5th Circuit to determine if petitioner is allowed to file successive habeas petition in this court. Signed by District Judge Debra M. Brown on 6/22/15. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

YVON ELLIS

PETITIONER

V.

NO. 4:15CV61-DMB-JMV

WARDEN CORNELIUS TURNER, ET AL.

RESPONDENTS

ORDER
The Court considers, sua sponte, whether to transfer this action to the Fifth Circuit Court of
Appeals.
On May 12, 2005, Petitioner was convicted of statutory rape. Pursuant to 28 U.S.C. §
2254, Petitioner submitted a petition for a writ of habeas corpus. In connection with the same
conviction he now seeks to challenge, Petitioner filed at least two prior unsuccessful § 2254
motions. Ellis v. Byrd, No. 4:07CV163-WAP-DAS (N.D. Miss.) (filed Oct. 2, 2007); Ellis v.
Jones, No. 4:13CV20-MPM-SAA (N.D. Miss.) (sealed). The Antiterrorism and Effective Death
Penalty Act requires that before an applicant files a second or successive petition in the district
court, “[he] shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application.” 28 U.S.C. § 2244(3)(A) (2012). Petitioner has not obtained such an
order. Rather than requiring dismissal of a petition on this basis, the Court of Appeals permits
district courts to transfer the petition to it for consideration pursuant to 28 U.S.C. § 2244(a) and
(b)(3)(c). See In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). Therefore, in the interest of justice
and judicial economy, it is hereby ORDERED that:
1. This petition will be transferred to the Fifth Circuit Court of Appeals for Petitioner to
seek leave to file this successive § 2254 petition;
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2. 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
3. This case is CLOSED.
SO ORDERED, this 22nd day of June, 2015.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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