Benoman v. East Mississippi Correctional Facility et al

Filing 6

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 10/7/19. (jla)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION CHRISTOPHER DESHONE BENOMAN V. PETITIONER NO. 4:19-CV-102-DMB-RP EAST MISSISSIPPI CORRECTIONAL FACILITY, et al. RESPONDENTS ORDER TRANSFERRING CASE On July 2, 2019, Christopher Deshone Benoman filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions and sentences in the Lauderdale County Circuit Court, Mississippi, for two counts of the lustful touching of a child. Doc. #1 at 1. Benoman has filed at least one unsuccessful § 2254 motion challenging the same convictions he seeks to challenge in this action. See Benoman v. Crockett, No. 3:15cv531-DPJFKB, 2016 U.S. Dist. LEXIS 79813, at *1 (S.D. Miss. May 19, 2016). The Antiterrorism and Effective Death Penalty Act requires that an applicant seeking to file a second or successive petition first “move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). It does not appear that Benoman obtained such authorization before filing this action. Rather than dismissing a habeas petition on the basis that it is successive, the Fifth Circuit has allowed district courts to transfer the petition 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: 1. Benoman’s petition is TRANSFERRED to the Fifth Circuit Court of Appeals for him to seek permission to file his successive § 2254 petition; 2. The Clerk of the Court shall 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 7th day of October, 2019. /s/Debra M. Brown UNITED STATES DISTRICT JUDGE 2

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