Tolbert v. Davis, Director TDCJ-CID, No. 3:2015cv02269 - Document 24 (N.D. Tex. 2016)

Court Description: 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 accepting 21 Findings and Recommendations on Case. (Ordered by Judge Sam A Lindsay on 10/6/2016) (rekc)

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Tolbert v. Davis, Director TDCJ-CID Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RICKY WAYNE TOLBERT, #00600956, Petitioner, v. LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Div., Respondent. § § § § § § § § § § § Civil Action No. 3:15-CV-2269-L ORDER This habeas case was referred to Magistrate Judge Renée Harris Toliver, who entered Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 21) on July 22, 2016, recommending that Petitioner’s habeas petition be construed as successive and dismissed without prejudice for lack of jurisdiction. Petitioner filed objections to the Report, which were docketed on August 4, 2016. 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 pleadings, file, record in this case, and Report, and having conducting a de novo review of that portion of the Report to which objection was made, 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 overrules Petitioner’s objections, directs the clerk of the court to transfer the habeas petition in this case to the United States Court of Appeals for the Fifth Circuit Fifth Circuit for determination, and dismisses without prejudice this action for lack of Order – Page 1 Dockets.Justia.com subject matter jurisdiction. In the event Petitioner files a notice of appeal, he may proceed in forma pauperis on appeal. It is so ordered this 6th day of October, 2016. _________________________________ Sam A. Lindsay United States District Judge Order – Page 2

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