Graves v. United States of America

Filing 4

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.) Order Adopting Findings and Recommendations re: 3 Findings and Recommendations on Case re: 1 Motion to Vacate under 28 U.S.C. 2255, filed by Kim Joe Graves. (Ordered by Judge Sam A Lindsay on 12/27/2016) (mem)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION KIM JOE GRAVES, Petitioner, v. UNITED STATES OF AMERICA, Respondent. § § § § § § § § § Civil Action No. 3:16-CV-3288-L ORDER This habeas case was referred to Magistrate Judge Paul D. Stickney, who entered Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on November 29, 2016, recommending that Petitioner’s habeas petition be construed as successive and transferred to the United States Court of Appeals for the Fifth Circuit. See 28 U.S.C. ' 2244(b)(3). Petitioner has not filed an objection to the Report. When a petition is deemed successive, the district court lacks subject matter jurisdiction unless a panel of the Fifth Circuit allows the successive petition to proceed. After reviewing the pleading, 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 the habeas petition in this case to the Fifth Circuit for determination, as it lacks subject matter jurisdiction. * It is so ordered this 27th day of December, 2016. _________________________________ Sam A. Lindsay United States District Judge * An order transferring a successive application to the court of appeals is not a final order requiring a certificate of appealability. See United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015). Order – Solo Page

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