Harvey v. Albright et al (INMATE1)

Filing 4

REPORT AND RECOMMENDATION of the Magistrate Judge that this case be transferred to the USDC NDAL pursuant to the provisions of 28 USC 2241(d); Objections to R&R due by 5/12/2009. Signed by Honorable Terry F. Moorer on 4/28/2009. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION RHOSHUNDRA HARVEY, #224630, Petitioner, v. FRANK ALBRIGHT, et al., Defendants. ) ) ) ) ) ) ) ) )

CASE NO. 2:09-CV-354-TMH [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 Rhoshundra Harvey ["Harvey"], a state inmate, on April 17, 2009. In this petition, Harvey challenges the constitutionality of actions related to convictions for robbery, theft and murder imposed upon her by the Circuit Court of Jefferson 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). Harvey attacks actions undertaken by the Circuit Court of Jefferson County, Alabama. Jefferson 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.1 CO NCLUSIO N 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 May 12, 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 a pp ea la bl e. 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

In transferring this case, the court makes no determination regarding the merits of the petitioner's claims for relief nor whether the petitioner has exhausted available state court remedies with respect to such claims prior to filing a federal habeas petition as required by 28 U.S.C.§ 2244(b)(1)(A).

1

2

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 28th day of April, 2009.

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

3