Lott v. Director, TDCJ-CID

Filing 43

ORDER ACCEPTING 42 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. (Ordered by Chief Judge Barbara M.G. Lynn on 8/21/2017) (ykp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RHEASHAD LAMAR LOTT,
ID #1596571,
Petitioner,
vs.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional Institutions Division,
Respondent.

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No. 3:13-CV-2699-M

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge for plain error, the Court is of the
opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted
as the Findings and Conclusions of the Court.
For the reasons stated in the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge, the petition for habeas corpus is successive and is hereby TRANSFERRED
to the United States Court of Appeals for the Fifth Circuit pursuant to Henderson v. Haro, 282 F.3d
862, 864 (5th Cir. 2002), and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).1
The Clerk of the Court is DIRECTED to (1) terminate the post-judgment motion (doc. 38)
and application to proceed in forma pauperis (doc. 39) in this habeas case; (2) open a new habeas
case for administrative purposes only; (3) docket the post-judgment motion (doc. 38) as a § 2254
motion filed on July 25, 2017, in that new case; (4) docket the application to proceed in forma
pauperis (doc. 39) and the order granting the application in that new case; (5) directly assign the new
1

A certificate of appealability (COA) is not required to appeal an order transferring a successive habeas petition. See
In re Garrett, 633 F. App’x 260, 261 (5th Cir. 2016); United States v. Fulton, 780 F.3d 683 (5th Cir.2015).

case to the same District Judge and Magistrate Judge as in this case; (6) file a copy of the Findings,
Conclusions, and Recommendation of the United States Magistrate Judge and the order accepting
those Findings, Conclusions, and Recommendation, and the judgment in that new case; and (7) and
without further judicial action, immediately TRANSFER the newly opened § 2254 action to the
United States Court of Appeals for the Fifth Circuit.
SIGNED this 21st day of August, 2017.

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BARBARA M. G. LYNN
CHIEF JUDGE

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