Demarcus Kennard Joe v Lorie Davis-Director TDCJ-CID
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)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DEMARCUS KENARD JOE
(TDCJ No. 1047716),
LORIE DAVIS, Director
Texas Department of Criminal Justice,
Correctional Institutions Division,
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).
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.
DATED: FEBRUARY 1, 2017
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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