Mims v. Forniss et al (INMATE1)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Larry Donovan Mims, that this case be TRANSFERRED to the United States District Court for the Northern District of Alabama. Objections to R&R due by 4/11/2007. Signed by Judge Wallace Capel Jr. on 3/29/2007. (dmn)

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Mims v. Forniss et al (INMATE1) Doc. 4 Case 2:07-cv-00272-WKW-WC Document 4 Filed 03/29/2007 Page 1 of 3 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION LARRY DONOVAN MIMS, #131817, Petitioner, v. ) ) ) ) ) CASE NO. 2:07-CV-272-WKW ) [ WO ] ) ) ) ) ) LEON FORNISS, et al., Respondents. RECOMMENDATION 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 Larry Donovan Mims ["Mims"], a state inmate, on March 22, 2007.1 In this petition, Mims challenges a conviction for trafficking in heroin imposed upon him by the Circuit Court of Jefferson County, Alabama on October 8, 2003. 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 Although the Clerk of this court stamped the present petition "filed" on March 28, 2007, Mims signed the petition on March 22, 2007. Petition for Writ of Habeas Corpus at 19. 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). "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the instant petition] was delivered to prison authorities the day [Mims] signed it . . ." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers March 22, 2007 as the date of filing. 1 Dockets.Justia.com Case 2:07-cv-00272-WKW-WC Document 4 Filed 03/29/2007 Page 2 of 3 which the State court was held which convicted" the petitioner. 28 U.S.C. 2241(d). Mims attacks a conviction entered against him by the Circuit Court of Jefferson County, Alabama. Jefferson 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 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 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 April 11, 2007 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 a pp ea la bl e. Failure to file written objections to the proposed findings and advisements in the Magistrate 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 2 Case 2:07-cv-00272-WKW-WC Document 4 Filed 03/29/2007 Page 3 of 3 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 29th day of March, 2007. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE 3

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