Truss v. Thomas et al (INMATE1)

Filing 5

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 provision of 28 USC 2241(d). Objections to R&R due by 3/9/2009. Signed by Honorable Charles S. Coody on 2/24/09. (sl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION LEARONARDO TRUSS, #220768, Plaintiff, v. WILLIE THOMAS, et al., Defendants. ) ) ) ) ) CIVIL ACTION NO. 2:09-CV-120-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 Learonardo Truss ["Truss"], a state inmate, on February 10, 2009.1 In this petition, Truss challenges a conviction for murder imposed upon him by the Circuit Court of Walker County, Alabama on October 26, 2001. 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). Truss attacks a conviction entered against him by the Circuit Court of Walker County, Alabama. Walker

Although the Clerk of this court stamped the present petition "filed" on February 19, 2009, Truss certified he executed the petition on February 10, 2009. Petition for Writ of Habeas Corpus - Court Doc. No. 1 at 10. 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 [Truss] signed it...." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers February 10, 2009 as the date of filing.

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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.2 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 March 9, 2009, 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.

In transferring the instant case, this court makes no determination regarding the merits of the petitioner's claims for relief nor whether the petition may be filed as it appears that such action is successive. See 28 U.S.C. § 2244(b)(3)(A); Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001); Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir.). cert. denied, 520 U.S. 1203 (1997).

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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 24th day of February, 2009.

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

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