Olive v. Stephens, Director TDCJ-CID

Filing 12

Order: After reviewing the pleadings, file, record in this case, and Report, the court determines that the 10 findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly, the court directs the clerk of the court to transfer Petitioner's § 2254 motion to the Fifth Circuit for consideration. Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the court denies a certificate of appealability. (Fifth Circuit notified via copy of the Notice of Electronic Filing.) (Ordered by Judge Sam A Lindsay on 4/30/2015) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOSE M. OLIVE, #1566996,

Petitioner,
v.
WILLIAM STEPHENS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

§
§
§
§
§
§
§
§
§
§
§

Civil Action No. 3:14-CV-3418-L-BK

ORDER
This case was referred to Magistrate Judge Renee Harris Toliver, who entered Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on April 7,
2015, recommending that Petitioner’s habeas petition be construed as a successive motion and
transferred to the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) for
consideration. As of the date of this order, no objections have been filed.
Petitioner has brought a habeas corpus petition pursuant to 28 U.S.C. § 2254, which the
magistrate judge found was barred because it is a successive petition for post-conviction relief.
Section 2244(b)(3) specifically provides: “Before a second or successive application permitted by
this section is filed in the district court, the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the application.” The Fifth Circuit has held that
the statutory provision “acts as a jurisdictional bar to the district court’s asserting jurisdiction over
any successive habeas petition until this court has granted the petitioner permission to file one.”
United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (citation omitted). This court is without
Order – Page 1

jurisdiction to entertain this petition because it is successive, and, in such instances, the petition must
be transferred to the appellate court for it to determine whether the district court can consider the
petition.
After reviewing the pleadings, file, record in this case, and Report, the court determines that
the findings and conclusions of the magistrate judge are correct, and accepts them as those of the
court. Accordingly, the court directs the clerk of the court to transfer Petitioner’s § 2254 motion
to the Fifth Circuit for consideration.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the court denies a certificate of appealability.* The court determines that Petitioner has failed to
show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims
debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition states
a valid claim of the denial of a constitutional right” and “debatable whether [this court] was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this
determination, the court accepts and incorporates by reference the magistrate judge’s report filed in
this case. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate filing

*

Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
(a)
Certificate of Appealability. The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. Before entering the final order, the
court may direct the parties to submit arguments on whether a certificate should issue. If the court
issues a certificate, the court must state the specific issue or issues that satisfy the showing required
by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A
motion to reconsider a denial does not extend the time to appeal.
(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an
order entered under these rules. A timely notice of appeal must be filed even if the district court issues
a certificate of appealability.
Order – Page 2

fee or submit a motion to proceed in forma pauperis (“IFP”), unless he has been granted IFP status
by the district court.
It is so ordered this 30th day of April, 2015.
_________________________________
Sam A. Lindsay
United States District Judge

Order – Page 3