Demarcus Kennard Joe v Lorie Davis-Director TDCJ-CID

Filing 18

ORDER ACCEPTING 5 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY: Habeas corpus petition is successive, and the clerk is directed to transfer the matter to the Fifth Circuit Court of Appeals. (Fifth Circuit notified via copy of the Notice of Electronic Filing.) (Ordered by Judge Jane J. Boyle on 2/1/2017) (epm)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DEMARCUS KENARD JOE (TDCJ No. 1047716), Petitioner, V. LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. § § § § § § § § § § § § No. 3:16-cv-2667-B ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. No objections were filed. The District Court reviewed the proposed findings, conclusions, and recommendation for plain error. Finding none, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. Because the Court is transferring this successive habeas application to the United States Court of Appeals for the Fifth Circuit for appropriate action, the Court need not address whether Petitioner is entitled to a certificate of appealability (“COA”). 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 [28 U.S.C.] § 2253(c)(1)(B), and the appeal of such an order does not require a COA.”); Guel-Rivas v. Stephens, 599 F. App’x 175, 175 (5th Cir. 2015) (per curiam) (applying Fulton’s holding to transfer of a successive Section 2254 application). -1- But in the event the Petitioner will file a notice of appeal, the Court notes that the Petitioner must pay the filing fee or file a motion for leave proceed in forma pauperis on appeal. SO ORDERED. DATED: FEBRUARY 1, 2017 _________________________________ JANE J. BOYLE UNITED STATES DISTRICT JUDGE -2-

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