York v. State of Alabama et al (INMATE1)

Filing 2

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Charles York that this case be transferred to the United States District Court for the Southern District of Alabama pursuant to the provisions of 28 U.S.C. 2241(d). Objections to R&R due by 5/1/2006. Signed by Judge Charles S. Coody on 4/18/2006. (dmn)

York v. State of Alabama et al (INMATE1)

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Case 2:06-cv-00341-WHA-CSC

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Filed 04/18/2006

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION C H A R L E S YORK, #109642, Petitioner, v. S T A T E OF ALABAMA, et al., Respondents. ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 2:06-CV-341-WHA

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is cause of action is pending before the court on a 28 U.S.C. § 2254 petition for h a b e as corpus relief filed by Charles York ["York"], a state inmate, on April 2, 2006.1 The p e titio n establishes that York was convicted of murder by the Circuit Court of Mobile C o u n t y, Alabama on March 28, 1974. It is this conviction which York challenges in the in s ta n t 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 S ta te court was held which convicted" the petitioner. 28 U.S.C. § 2241(d). York attacks

1. Although the Clerk of this court stamped the present petition "filed" on April 14, 2006, York certified the petition for mailing on April 2, 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, 1340-41 (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 April 2, 2006 as the date of filing.

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Case 2:06-cv-00341-WHA-CSC

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c o n v ictio n s entered against him by the Circuit Court of Mobile County, Alabama. Mobile C o u n ty is located within the jurisdiction of the United States District Court for the Southern 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 Southern District of Alabama p u rsua n t to the provisions of 28 U.S.C. § 2241(d).1 It is further ORDERED that on or before May 1, 2006 the parties may file objections to the R e c o m m e n d a t io n . Any objections filed must specifically identify the findings in the

M a g is 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 g is 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

2. The petitioner failed to file an application for leave to proceed in forma pauperis nor did he submit the $5 filing fee. However, under the circumstances of this case, this court makes no ruling on whether the petitioner should be allowed to proceed in forma pauperis as the assessment and collection of any filing fee should be undertaken by the United States District Court for the Southern District of Alabama.

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a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e this 18 th day of April, 2006.

/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE

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