Graham v. Forniss et al (Inmate 1)

Filing 2

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by James E. Graham, Jr. that this case be transferred to the United States District Court for the Northern District of Alabama pursuant to the provisions of 28 U.S.C. 2241(d). Objections to R&R due by 2/27/2006. Signed by Judge Delores R. Boyd on 2/14/2006. (dmn)

Graham v. Forniss et al (Inmate 1)

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Case 2:06-cv-00132-MEF-DRB

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Filed 02/14/2006

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION JAMES E. GRAHAM, JR., #133708, Petitioner, v. LEON FORNISS, et al., Respondents. ) ) ) ) ) CIVIL ACTION NO. 2:06-CV-132-MEF ) ) ) )

RECOMMENDATION OF THE MAGISTRATE JUDGE
T h is case is pending before the court on a 28 U.S.C. § 2254 petition for habeas corpus re lie f filed by James E. Graham, Jr. ["Graham"], a state inmate, on February 9, 2006.1 The p e titio n establishes that Graham was convicted of first degree rape, first degree sodomy and firs t degree sexual abuse by the Circuit Court of Shelby County, Alabama on September 27, 2 0 0 1 . It is these convictions which Graham challenges in the instant habeas petition. DISCUSSION T h is court "in the exercise of its discretion and in furtherance of justice" may transfer a n application for writ of habeas corpus to "the district court for the district within which the Sta te court was held which convicted" the petitioner. 28 U.S.C. § 2241(d). Graham attacks

1. Although the Clerk of this court stamped the present petition "filed" on February 10, 2006, a correctional official noted on the petition that Graham submitted the petition for mailing on February 9, 2006. The law is well settled that a pro se inmate's petition is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-272 (1988); Adams v. United States, 173 F.3d 1339, 134041 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). In light of the foregoing and for purposes of this Recommendation, the court considers February 9, 2006 as the date of filing.

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c o n vic tio n s entered against him by the Circuit Court of Shelby County, Alabama. Shelby C o u n ty is located within the jurisdiction of the United States District Court for the Northern D is tr ic t 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 b e transferred to the United States District Court for the Northern District of Alabama p u rsua n t to the provisions of 28 U.S.C. § 2241(d). It is further ORDERED that on or before February 27, 2006 the parties may file objections to the R e c o m m e n d atio n . Any objections filed must specifically identify the findings in the M a gis tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a gis tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a t t a c kin g on appeal factual findings in the Recommendation accepted or adopted by the D i s tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in wr ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d

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3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, e n banc), adopting as binding precedent all of the decisions of the former Fifth Circuit h a n d e d down prior to the close of business on September 30, 1981. D o n e this 14 th day of February, 2006.

/s/ Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE

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