Billingslea v. Director, TDCJ-CID

Filing 44

ORDER: The court determines that the 41 findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. When the court construes Petitioner's Rule 60 Motion as a second or successive habeas petition und er 28 U.S.C. § 2254 and directs the clerk of the court to: (1) open a new civil action for the successive habeas claims asserted in Petitioner's Rule 60 Motion; and (2) transfer the action and the successive habeas petition to the Fifth Circuit to determine whether the claims asserted should be allowed to proceed. See 3:23-cv-01144 (Ordered by Judge Sam A. Lindsay on 5/18/2023) (svc)

Case 3:22-cv-00999-L-BH Document 44 Filed 05/18/23

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DARRELL BILLINGSLEA,
Petitioner,
v.
DIRECTOR, Texas Department of
Criminal Justice, Correctional
Institutions Division,
Respondent.

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Civil Action No. 3:22-CV-999-L-BH

ORDER
On March 22, 2023, the Findings, Conclusions and Recommendation of the United States
Magistrate Judge (“Report”) (Doc. 41) was entered, recommending that Petitioner’s Rule 60
Motion (Doc. 36) be construed as a successive habeas petition over which the court lacks
jurisdiction, opened as a new civil action, and transferred to the United States Court of Appeals
for the Fifth Circuit. The court has not received any objections to the Report from Petitioner, and
the time for filing objections has expired.
After considering the Rule 60 Motion, pleadings, file, record in this case, and Report issued
by the magistrate judge, the court determines that the findings and conclusions of the magistrate
judge are correct, and accepts them as those of the court. 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. For the reasons stated by the magistrate judge, the court construes
Petitioner’s Rule 60 Motion as a second or successive habeas petition under 28 U.S.C. § 2254 and
directs the clerk of the court to: (1) open a new civil action for the successive habeas claims

Order – Page 1

Case 3:22-cv-00999-L-BH Document 44 Filed 05/18/23

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asserted in Petitioner’s Rule 60 Motion; and (2) transfer the action and the successive habeas
petition to the Fifth Circuit to determine whether the claims asserted should be allowed to proceed.
It is so ordered this 18th day of May, 2023.

_________________________________
Sam A. Lindsay
United States District Judge

Order – Page 2