UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NICOLAS SANCHEZ-GARCIA

ID # 32518-177,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

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) CRIMINAL ACTION NO.

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) 3:04-CR-014-G

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ORDER ACCEPTING FINDINGS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

After reviewing all relevant matters of record in this case, including the

findings, conclusions, and recommendation of the United States Magistrate Judge

and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the court is 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. For the reasons stated

in the findings, conclusions, and recommendation of the United States Magistrate

Judge, the motion is construed as a motion to vacate and is TRANSFERRED to the

United States Court of Appeals for the Fifth Circuit pursuant to United States v.

Fulton, 780 F.3d 683 (5th Cir. 2015).
In accordance with FED. R. APP. P. 22(b) and 28 U.S.C. § 2253(c) and after

considering the record in this case and the recommendation of the magistrate judge,

the court DENIES the petitioner a certificate of appealability. The court adopts and

incorporates by reference the magistrate judge’s findings, conclusions and

recommendation filed in this case in support of its finding that no certificate of

appealability is required to appeal an order that transfers a motion to vacate to the

United States Court of Appeals for the Fifth Circuit pursuant to Fulton, 780 F.3d at

686.*

* Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended

effective on December 1, 2009, reads as follows: 

(a) Certificate of Appealability. The district

court must issue or deny a certificate of

appealability when it enters a final order

adverse to the applicant. Before entering the

final order, the court may direct the parties to

submit arguments on whether a certificate

should issue. If the court issues a certificate,

the court must state the specific issue or

issues that satisfy the showing required by 28

U.S.C. § 2253(c)(2). If the court denies a

certificate, the parties may not appeal the

denial but may seek a certificate from the

court of appeals under Federal Rule of

Appellate Procedure 22. A motion to

reconsider a denial does not extend the time

to appeal.

(b) Time to Appeal. Federal Rule of

Appellate Procedure 4(a) governs the time to

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The clerk of the court is DIRECTED to (1) terminate the post-judgment

motion (docket entry 91) in this case; (2) open a new habeas case for administrative

purposes only; (3) docket the post-judgment motion (docket entry 91) in that new

case as a 28 U.S.C. § 2255 motion filed November 15, 2017; (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 recommendation of the United States Magistrate

Judge and the order accepting those findings, conclusions, and recommendation, and

the judgment in that new case; and (6) and without further judicial action,

immediately TRANSFER the newly opened § 2255 action to the United States

Court of Appeals for the Fifth Circuit.

In the event that the petitioner files a notice of appeal, he must pay the

$505.00 appellate filing fee or submit a motion to proceed in forma pauperis that is

accompanied by a properly signed certificate of inmate trust account. 

SO ORDERED.

December 12, 2017.

___________________________________

A. JOE FISH

Senior United States District Judge

*

(...continued)

appeal an order entered under these rules. A

timely notice of appeal must be filed even if

the district court issues a certificate of

appealability. 

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