Hightower v. The State of Texas

N.D. Texas

Hightower v. The State of Texas

DecidedApril 18, 2023

Docket3:23-cv-00440

StatusUnknown

This text of Hightower v. The State of Texas (Hightower v. The State of Texas) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hightower v. The State of Texas, (N.D. Tex. 2023).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

TOMMY LEE HIGHTOWER, JR., § TDCJ No. 1038986, § Petitioner, § § v. § Civil Action No. 3:23-CV-00440-E-BN § THE STATE OF TEXAS, § § Respondent. § § §

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The Court conducted an independent review of the pleadings, files and records in this case, and the Findings, Conclusions, and Recommendation of the United States Magistrate Judge dated March 2, 2023. (Doc. 4). Objections were filed. (Doc. 5). The Court reviewed de novo those portions of the proposed findings, conclusions, and recommendation to which objection was made, and reviewed the remaining proposed findings, conclusions, and recommendation for plain error. The Court has found no error in the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. (Doc. 4). Accordingly, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. (Doc. 4). The court therefore TRANSFERS Petitioner’s unauthorized successive 28 U.S.C. § 2254 habeas application to the United States Court of Appeals for the Fifth Circuit for appropriate action. And, because the Court is transferring the application to the Fifth Circuit, a certificate of appealability (a COA) is not necessary. See United States v. Fulton, 780 F.3d 683, 688 (5th Cir.) (“[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.”), cert. denied, 577 U.S. 967 (2015); Guel-Rivas v. Stephens, 599 Fed. Appx. 175, 175 (Sth Cir. 2015) (per curiam) (applying Fulton ’s holding to transfer of a successive Section 2254 application).

SO ORDERED. 18th day of April, 2023.

ADA BROWN UNITED STATES DISTRICT JUDGE

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Page 2 of 2

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

TOMMY LEE HIGHTOWER, JR., § TDCJ No. 1038986, § Petitioner, § § v. § Civil Action No. 3:23-CV-00440-E-BN § THE STATE OF TEXAS, § § Respondent. § § §

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The Court conducted an independent review of the pleadings, files and records in this case, and the Findings, Conclusions, and Recommendation of the United States Magistrate Judge dated March 2, 2023. (Doc. 4). Objections were filed. (Doc. 5). The Court reviewed de novo those portions of the proposed findings, conclusions, and recommendation to which objection was made, and reviewed the remaining proposed findings, conclusions, and recommendation for plain error. The Court has found no error in the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. (Doc. 4). Accordingly, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. (Doc. 4). The court therefore TRANSFERS Petitioner’s unauthorized successive 28 U.S.C. § 2254 habeas application to the United States Court of Appeals for the Fifth Circuit for appropriate action. And, because the Court is transferring the application to the Fifth Circuit, a certificate of appealability (a COA) is not necessary. See United States v. Fulton, 780 F.3d 683, 688 (5th Cir.) (“[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.”), cert. denied, 577 U.S. 967 (2015); Guel-Rivas v. Stephens, 599 Fed. Appx. 175, 175 (Sth Cir. 2015) (per curiam) (applying Fulton ’s holding to transfer of a successive Section 2254 application).

SO ORDERED. 18th day of April, 2023.

ADA BROWN UNITED STATES DISTRICT JUDGE

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Page 2 of 2

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