Leslie v. Albright et al (INMATE2)

Filing 3

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Kim Leslie; 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 5/4/2009. Signed by Honorable Wallace Capel, Jr on 4/21/09. (vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ K IM LESLIE, #256 526, P e t i t io n e r , v. S T A T E OF ALABAMA, et al., R e s p o n d e n ts . _____________________________ * * * * * 2:09-CV-360-WHA (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 17, 2009.1 In this petition, Petitioner challenges

application of the Habitual Felony Offender Act and the amount of jail credit awarded to her by the Circuit Court for Madison County, Alabama, on a sentence imposed on her in 2007 for convictions on arson and extortion.
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 20, 2009, Petitioner certified the petition for mailing on April 17, 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 17, 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 application of the Habitual Felony Offender Act and the amount of jail

credit granted by the Circuit Court for Madison County, Alabama. Madison County is
lo c a te d within the jurisdiction of the United States District Court for the Northern District o f Alabama. In light of the foregoing, the court concludes that the transfer of this case to s u c h 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).3 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 May 4, 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 .

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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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.

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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 f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e r r 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 21s t day of April, 2009.

/s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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