Patrick Kimble v. William Stephens, Director , 623 F. App'x 213 ( 2015 )

Case: 14-10571 Document: 00513276270 Page: 1 Date Filed: 11/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10571 FILED
November 18, 2015
Lyle W. Cayce
PATRICK BOUVIA KIMBLE,
Clerk
Petitioner-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-1115
Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
Patrick Bouvia Kimble, Texas prisoner # 712624, brought this case
under 28 U.S.C. § 2254 to challenge his Texas murder conviction. The district
court concluded that the application was a successive one and transferred it to
this court so that Kimble might seek authorization to proceed. See 28 U.S.C.
§ 2244(b)(3)(A); In re Epps, 127 F.3d 364, 364-65 (5th Cir. 1997). The district
court denied a certificate of appealability (COA). Kimble filed a timely notice
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-10571 Document: 00513276270 Page: 2 Date Filed: 11/18/2015
No. 14-10571
of appeal and moved for a COA from this court. In a separate proceeding, a
panel of this court concluded that Kimble’s proposed § 2254 application was
indeed successive and denied Kimble authorization to file it. In re Kimble, 14-
10526. 1
Implicitly agreeing that his proposed § 2254 application is a successive
one, Kimble has abandoned any challenge to the district court’s transfer order.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987). We conclude that the district court “did not err by transferring the
[application] for lack of jurisdiction.” Fulton, 783 F.3d at 686. We therefore
DENY Kimble’s motion for a COA as unnecessary and AFFIRM the district
court’s transfer order.
1 The authorization case proceeded separately from the present case because it was
decided before our direction that, to the extent practicable, appeals from transfer orders
should be consolidated with proceedings by the same applicant seeking authorization for
filing a successive habeas petition. United States v. Fulton, 780 F.3d 683, 688 (5th Cir.), cert.
denied, 2015 U.S. LEXIS 6835 (U.S. Nov. 2, 2015)(15-6348)
2