Smith v. Jones et al (INMATE1)

Filing 4

RECOMMENDATION of the Magistrate Judge that this case be transferred to the United States District Court for the Southern District of Alabama. Objections to R&R due by 9/22/2008. Signed by Honorable Charles S. Coody on 9/8/08. (sl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ANDY DEWAYNE SMITH, #178735, Petitioner, v. KENNETH JONES, et al., Respondents. ) ) ) ) ) ) ) ) ) )

CASE NO. 2:08-CV-720-WHA [WO]

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 Andy DeWayne Smith ["Smith"], a state inmate, on August 30, 2008.1 In this petition, Smith challenges a conviction and sentence for first degree assault imposed upon him by the Circuit Court of Escambia County, Alabama. 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). Smith attacks a conviction and sentence entered against him by the Circuit Court of Escambia County,
Although the Clerk of this court stamped the present petition "filed" on September 3, 2008, Smith executed the petition on August 30, 2008. Petition for Writ of Habeas Corpus - Court Doc. No. 1 at 18. 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 [Smith] signed it...." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers August 30, 2008 as the date of filing.
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Alabama. Escambia County is located within the jurisdiction of the United States District Court for the Southern 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 Southern District of Alabama pursuant to the provisions of 28 U.S.C. § 2241(d). It is further ORDERED that on or before September 22, 2008, 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 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 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

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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 8th day of September, 2008.

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

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