Fomby v. Mosley et al (INMATE1)

Filing 3

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Malcolm Muhammad Fomby; that this case be transferred to USDC, Northern District of Alabama; Objections to R&R due by 12/26/2005. Signed by Judge Charles S. Coody on 12/13/05. (ajr, )

Fomby v. Mosley et al (INMATE1)

Doc. 3

Case 2:05-cv-01177-MHT-CSC

Document 3

Filed 12/13/2005

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IN THE DISTRICT COURT OF THE UNITED STATES FO R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION M AL CO LM M. FOMBY, #194547, Petitioner, v. GWENDOLYN MOSELY, et al., Respondents. ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:05-CV-1177-N

R EC OM M EN DA TIO N OF THE MAGISTRATE JUDGE This case is pending before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief filed by Malcolm M. Fomby ["Fomby"], a state inmate, on December 12, 2005. The petition establishes that Fomby was convicted of unlawful distribution of a controlled substance by the Circuit Court of Etowah County, Alabama on March 11, 1998. It is this conviction which Fomby challenges in the instant habeas petition. DISCUSSION This court "in the exercise of its discretion and in furtherance of justice" may transfer an application for writ of habeas corpus to "the district court for the district within which the State court was held which convicted" the petitioner. 28 U.S.C. § 2241(d). Fomby attacks a conviction entered against him by the Circuit Court of Etowah County, Alabama. Etowah County is located within the jurisdiction of the United States District Court for the Northern District of Alabama. In light of the foregoing, the court concludes that a transfer of this case to such other court for review and disposition is appropriate. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case be

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Case 2:05-cv-01177-MHT-CSC

Document 3

Filed 12/13/2005

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transferred to the United States District Court for the Northern District of Alabama pursuant to the provisions of 28 U.S.C. § 2241(d). It is further ORDERED that on or before December 26, 2005 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the M agistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Done this 13th day of December, 2005.

/s/Charles S. Coody CHARLES S. COODY CHIE F UNITED STATES MAGISTRATE JUDGE

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