Houston v. USA
Order: 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.) The Court ACCEPTS the 4 Findings, Conclusions, and Recommendation of the United States Magistrate Judge. (Ordered by Judge David C Godbey on 12/16/2016) (twd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
KEVIN ARWIN HOUSTON
(BOP Register No. 25012-077),
UNITED STATES OF AMERICA,
The United States Magistrate Judge made findings, conclusions, and a
recommendation in this case. An objection was filed by Movant. The District Court
reviewed de novo those portions of the proposed findings, conclusions, and
recommendation to which objection was made, and reviewed the remaining proposed
findings, conclusions, and recommendation for plain error. Finding no error, the
Court ACCEPTS the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge.
As the Court lacks jurisdiction over the unauthorized successive 28 U.S.C. §
2255 motion to vacate, set aside, or correct sentence, it is ORDERED, ADJUDGED,
and DECREED that the motion is TRANSFERRED to the United States Court of
Appeals for the Fifth Circuit for appropriate action.
Because the Court is transferring the successive Section 2255 motion to the
Fifth Circuit for appropriate action, the Court need not address whether Movant 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.”).
But in the event Movant will file a notice of appeal, the Court notes that
Movant must pay the filing fee or file a motion for leave proceed in forma pauperis on
SO ORDERED this 16th day of December, 2016.
DAVID C. GODBEY
UNITED STATES DISTRICT JUDGE
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