Phipps v. USA

Filing 8

ORDER ACCEPTING 7 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE and Denying Certificate of Appealability. (Ordered by Chief Judge Barbara M.G. Lynn on 10/30/2017) (ykp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAMES RAY PHIPPS,
ID # 25807-001,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:17-CV-2720-M (BH)
No. 3:06-CR-0114-M (01)

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge for plain error, I am of the
opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are
accepted as the Findings and Conclusions of the Court.
For the reasons stated in the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge, the motion to vacate is TRANSFERRED to the United States Court of
Appeals for the Fifth Circuit pursuant to United States v. Fulton, 780 F.3d 683 (5th Cir. 2015).
In accordance with Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c) and after considering
the record in this case and the recommendation of the Magistrate Judge, the Court DENIES the
movant a Certificate of Appealability. The Court adopts and incorporates by reference the
Magistrate Judge’s Findings, Conclusions and Recommendation filed in this case in support of
its finding that no Certificate of Appealability is required to appeal an order that transfers a

motion to vacate to the United States Court of Appeals for the Fifth Circuit pursuant to Fulton,
780 F.3d at 686.1
In the event that the movant files a notice of appeal, he must pay the $505.00 appellate
filing fee or submit a motion to proceed in forma pauperis that is accompanied by a properly
signed certificate of inmate trust account.
SIGNED this 30th day of October, 2017.

_________________________________
BARBARA M. G. LYNN
CHIEF JUDGE

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Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on December 1, 2009, reads
as follows:
(a) Certificate of Appealability. The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant. Before entering the final order, the court may
direct the parties to submit arguments on whether a certificate should issue. If the court issues a
certificate, the court must state the specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but may
seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A motion
to reconsider a denial does not extend the time to appeal.
(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order
entered under these rules. A timely notice of appeal must be filed even if the district court issues a
certificate of appealability.

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