Wells v. Giles et al (INMATE 2)

Filing 3

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Joey Dejuan Wells; it is the Recommendation of the Mag Judge that this case be transferred to the USDC for the NDAL pursuant to the provisions of 28 USC 2241(d); Objections to R&R due by 11/26/2008. Signed by Honorable Wallace Capel, Jr on 11/13/08. (vma, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ J O E Y DEJUAN WELLS, #197 042 P e t i t io n e r , v. W A R D E N J.C. GILES, et al., R e s p o n d e n ts . _____________________________ * * * * * 2:08-CV-904-TMH (W O ) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is matter is pending before the court on a 28 U.S.C. 2254 petition for habeas c o rp u s filed by Petitioner on November 6, 2008.1 In this petition, Petitioner challenges his c o n v i c tio n for a drug offense entered against him by the Circuit Court for Lauderdale C o u n ty, Alabama, in 2008. Petitioner is currently serving a 30-year term of imprisonment. D IS C U S S IO N T h is court, "in the exercise of its discretion and in furtherance of justice," may transfer P e titio n e r's application for writ of habeas corpus to "the district court for the district within 1 The instant petition and request for leave to proceed in forma pauperis were stamped "filed" by the Clerk of this court on November 10, 2008. The court notes, however, that the inmate account clerk at the Ventress Correctional Facility certified the in forma pauperis affidavit submitted with Petitioner's petition on November 6, 2008. Thus, it is clear that Petitioner had these documents within his possession at such time and, therefore, could not have submitted them to prison officials for mailing prior to November 6, 2008. 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 the proceedings herein, the court considers November 6, 2008 as the date of filing. w h ic h the State court was held which convicted" Petitioner. 28 U.S.C. 2241(d). Petitioner s e e k s to challenge a conviction entered against him by the Circuit Court for Lauderdale C o u n ty, Alabama. Lauderdale County is located within the jurisdiction of the United States D is tr ic t Court for the Northern District of Alabama. In light of the foregoing, the court c o n c lu d e s that the transfer of this case to such other court for review and disposition is a p p r o p r i a te .2 C O N C L U SIO N 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 O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before November 26, 2008. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that 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 recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District A decision on Petitioner's application for in forma pauperis status is reserved for ruling by the United States District Court for the Northern District of Alabama. 2 2 C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981 ) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 13 th day of November 2008. /s/ Wallace Capel,Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 3

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