Dawson v. Davis-Director TDCJ-CID

Filing 6

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 accepts 4 Findings and Recommendation s on Case re: 3 Petition for Writ of Habeas Corpus, filed by Timmy Antonio Dawson. If Petitioner files a notice of appeal, the Court notes that he must pay the filing fee or file a motion for leave proceed in forma pauperis on appeal. (Ordered by Judge David C Godbey on 8/3/2017) (epm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TIMMY ANTONIO DAWSON
(TDCJ No. 681033),
Petitioner,
V.
LORIE DAVIS, Director
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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No. 3:17-cv-1651-N

ORDER
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 lacks jurisdiction over Petitioner’s unauthorized successive
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, it is ORDERED,
ADJUDGED, and DECREED that the application is TRANSFERRED to the United
States Court of Appeals for the Fifth Circuit for appropriate action.
Because the Court is transferring the successive habeas application to 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
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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 that Petitioner does file a notice of appeal, the Court notes
that he must pay the filing fee or file a motion for leave proceed in forma pauperis on
appeal.
SO ORDERED this 3rd day of August, 2017.

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DAVID C. GODBEY
UNITED STATES DISTRICT JUDGE

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