Wallace v. Ellington et al (INMATE1)
REPORT AND RECOMMENDATIONS of the Mag Judge that this case be TRANSFERRED to the USDC for the Southern District of Alabama pursuant to the provisions of 28 USC 2241(d); Objections to R&R due by 4/15/2009. Signed by Honorable Wallace Capel, Jr on 4/2/09. (djy, )
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ D O R O T H Y LA'SHAY WALLACE, # 2 0 9 172 P e t i t io n e r , v. W A R D E N ELLINGTON, et al., R e s p o n d e n ts . _____________________________ * * * * * 2:09-CV-274-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 March 29, 2009.1 In this petition, Petitioner challenges her c o n v ictio n for murder - intent to kill entered against her by the Circuit Court for Mobile C o u n ty, Alabama, on May 15, 2000. Petitioner is currently serving a 20-year term of im p ri s o n m e n t. DISCUSSION 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
Although the Clerk of this court stamped the present petition "filed" on April 1, 2009, Petitioner certified the petition for mailing on March 29, 2009. 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 March 29, 2009 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 her by the Circuit Court for Mobile County, A laba m a. Mobile County is located within the jurisdiction of the United States District Court f o r the Southern District of Alabama. In light of the foregoing, the court concludes that the tra n sf e r of this case to such other court for review and disposition is appropriate.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 Southern 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 t io n on or before April 15, 2009. 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 C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual
A decision on Petitioner's application for in forma pauperis status is reserved for ruling by the United States District Court for the Southern District of Alabama.
fin 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 2 n d day of April 2009.
/s/ Wallace Capel,Jr WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE
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