Foster v. Wheeler-White et al (INMATE1)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Shanna Renna Foster; 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 5/18/2009. Signed by Honorable Terry F. Moorer on 5/5/09. (vma, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION SHANNA RENNA' FOSTER, #256541, Petitioner, v. CYNTHIA WHEELER-WHITE, et al., Respondents. ) ) ) ) ) ) ) ) ) CASE NO. 2:09-CV-399-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 Shanna Renna' Foster ["Foster"], a state inmate, on April 29, 2009.1 In this petition, Foster challenges the amount of credit awarded to her by the Circuit Court of Jefferson County, Alabama on a sentence imposed for a third degree robbery conviction. Foster also seeks amendment/reconsideration of this sentence based on her completion of various prison programs. 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 Although the Clerk of this court stamped the present petition "filed" on May 1, 2009, Foster certified she executed the petition on April 29, 2009. Petition for Writ of Habeas Corpus - Court Doc. No. 1 at 15. 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 [Foster] signed it...." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers April 29, 2009 as the date of filing. 1 which the State court was held which convicted" the petitioner. 28 U.S.C. 2241(d). Foster contends the amount of credit granted to her by the Circuit Court of Jefferson County, Alabama on the robbery sentence imposed in 2003 is incorrect. Specifically, Foster requests that such state court be required to award her additional credit towards her sentence for the two (2) years she served while on probation and "the time [she] was out on bond" awaiting trial. Petition for Writ of Habeas Corpus - Court Doc. No. 1 at 5, 7. Moreover, Foster seeks amendment/reconsideration of her sentence because she has "successfully completed several programs ... and [has] served more than half of [her] sentence." Id. at 8. 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 a pp ro pr ia te .2 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 18, 2009 the parties may file objections to the In transferring the instant case, this court makes no determination regarding the merits of the petitioner's c la im s for relief nor whether the petitioner has exhausted available state court remedies prior to filing a federal h ab ea s petition as required by 28 U.S.C. 2244(b)(1)(A). 2 2 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 in the Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report 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 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 decisions of the former Fifth Circuit issued prior to September 30, 1981. D o n e this 5 th day of May, 2009. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE 3

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