Whaley v. Court of Criminal Appeals of Texas et al, No. 3:2019cv02392 - Document 5 (N.D. Tex. 2019)
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 Adopting Findings and Recommendations re: 4 Findings and Recommendations on Case re: 3 Petition for Writ of Habeas Corpus (Motion to Vacate and Reverse Sentence). (Ordered by Senior Judge Sam R Cummings on 10/9/2019) (ykp)
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Whaley v. Court of Criminal Appeals of Texas et al Doc. 5 IN TI]E UNITED S'IATES DISl'zuCT COURI' FOR THF] NORTHERN DISTRICT OF TEXAS DALLAS DIVISION MICHAEL DEWAYNE WtIALEY. Petitioner. COURT OF CRIMINAL APPEALS, et a/., Respondent ) ) ) ) ) ) ) ) ) Civil Action No. 3: 1 S-CV- 144-C ORDERI Before the Court are the Findings, Conclusions, and Recommendation ofthe United States Magistrate Judge advising the Court that Petitioner's Motion to Vacate and Reverse Sentence(s) should be construed as a successive petition and transferred to the United States Court of Appeals for the Fifth Circuit. The Court has reviewed the Findings, Conclusions, and Recommendation for clear error and finds none. are hereby It is therefore ORDERED that the Findings, Conclusions, and Recommendation ADOPTED as the findings and conclusions of the Court. For the reasons stated therein, Petitioner's Motion to Vacate and Reverse Sentence(s), received October 4, 2019, is CONSTRUED as a successive petition and TRANSFERRED to the United States Court Appeals for the Fifth Circuit. The Clerk of Court is DIRI,CTED to: (l) of terminate the motion in this civil rights case; (2) open a new habeas case for administrative purposes only; (3) docket the motion in that new case as a $ 2254 petition, filed October 4, 2019; (4) directly assign the new I The Couft need not consider oblections from Petitioner prior to the entry ofthis Order, as the outcome remains the same, as a tnatter of law, regardless of whether objections are filed. Dockets.Justia.com case to the undersigned Senior United District Judge and same Magistrate Judge as in this case; (5) file in the new case a copy ofthese Findings, Conclusions, and Recommendation of the United States Magistrate Judge, and the order accepting these Findings, Conclusions, and Recommendation; and (6) without further judicial action, immediately TRANSFER the newly opened $ 2254 action lo the United States Court ofAppeals for the Fifth Circuit under Henderson v. Haro,282 Cir. F .3d 862, 864 (sth Cir. 2002) and In re Epps, 127 F.3d 364, 365 (5th ,l 1997).2 SO ORDERED this ( da1' of Octobcr. 201 9. ) 4./1 SA GS S STATES D Cl'JUDGI] l r A certificate ofappealability (COA) is not required to appeal an order transferring a successive habeas petition. See In re Garrett,633 F. App'x 260, 261 (5th Cir. 2016): United States v Fullon,780 F.3d 683 (5th Cir. 2015). 2
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