Dew v. Wheeler-White et al (INMATE2)

Filing 2

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Dawn Arlita Dew; it is the Recommendation of the Mag Judge that this case be transferred to the USDC for the NDAL pursuant to provisions of 28 USC 2241(d); Objections to R&R due by 4/27/2009. Signed by Honorable Terry F. Moorer on 4/13/09. (vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ D A W N ARLITA DEW, #256 856, P e t i t io n e r , v. C Y N T H IA WHEELER-WHITE, WARDEN, e t al., R e s p o n d e n ts . _____________________________ * * * * * 2:09-CV-304-TMH (WO)

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 co rpu s filed by Petitioner on April 2, 2009.1 In this petition, Petitioner challenges the amount

of jail credit awarded to her by the Circuit Court for Shelby County, Alabama, on a sentence imposed in 2007 for her convictions on drug offenses (trafficking and obtaining a controlled
su b stan ce by fraud). 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

Although the Clerk of this court stamped the present petition "filed" on April 8, 2009, Petitioner certified the petition for mailing on April 2, 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 April 2, 2009 as the date of filing.

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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 the amount of jail credit granted by the Circuit Court for Shelby County, A laba m a. Shelby County is located within the jurisdiction of the United States District Court f o r the Northern 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 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 April 27, 2009. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g i s tra te Judge's report shall bar the party from a de novo determination by the District

In transferring the instant case, this court makes no determination regarding the merits of Petitioner's c la im for relief nor whether she has exhausted available state court remedies prior to filing a federal habeas p etition as required by 28 U.S.C.§ 2244(b)(1)(A).

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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.

Done, this 13th day of April 2009.

/s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

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