Lin v. United States

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION XIAO CHEN LIN, ) ID # 08242-043, ) Movant, ) ) No. 3:19-CV-263-M-BH vs. ) No. 3:16-CR-270-M(1) ) UNITED STATES OF AMERICA, ) Respondent. ) ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE After reviewing 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. The Petitioners [sic] motion for Relief from a judgment or order pursuant to the Federal Rules of Civil Procedure, Rule 60(b)(6), received on June 1, 2022 (doc. 65), is CONSTRUED as a successive motion to vacate filed under 28 U.S.C. § 2255. The Clerk of the Court is DIRECTED to: (1) terminate the post-judgment motion in this habeas case; (2) open a new habeas case for administrative purposes only; (3) docket the post-judgment motion as a § 2255 motion filed March 23, 2021, in that new case; (4) directly assign the new case to the same District Judge and Magistrate Judge as in this case; (5) file a copy of the Findings, Conclusions, and the order accepting those Findings, Conclusions, and Recommendation, and the judgment in that new case; and (6) without further judicial action, immediately TRANSFER the newly opened § 2255 action to the United States Court of Appeals for the Fifth Circuit.1 1 A certificate of appealability (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. Fulton, 780 F.3d 683 (5th Cir.2015). SIGNED this 6th day of July, 2022.

i. ty ¥ Le 4 i □□ 4 4 ls BARAM.G.NYNN © HIEF JUDGE