Cowan v. Wheeler-White et al (INMATE2)

Filing 2

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Katherine Cowan, that this case be TRANSFERRED to the United States District Court for the Southern District of Alabama pursuant to the provisions of 28 U.S.C. 2241(d). Objections to R&R due by 5/27/2009. Signed by Honorable Wallace Capel, Jr on 5/14/2009. (dmn)

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ K A T H E R IN E COWAN, #188 244 P e t i t io n e r , v. C Y N T H IA WHEELER-WHITE, WARDEN, et al., R e s p o n d e n ts . _____________________________ * * * * * 2:09-CV-422-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 c o rp u s filed by Petitioner, Katherine Cowan, on May 8, 2009.1 In this petition, Petitioner challenges matters associated with her 2006 conviction and sentence for second degree criminal possession of a forged instrument entered against her by the Circuit Court for C la rk e County, Alabama. 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 May 11, 2009, Petitioner certified the petition for mailing on May 8, 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 May 8, 2009 as the date of filing. 1 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 matters associated with her conviction and sentence imposed in 2006 by th e Circuit Court for Clarke County, Alabama. Clarke County is located within the ju ris d ic tio n of the United States District Court for the Southern District of Alabama. In light o f the foregoing, the court concludes that the transfer of this case to such other court for re v ie w 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 rs u a 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 May 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 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). 2 2 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 erro 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 14th day of May, 2009. /s / Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATE MAGISTRATE JUDGE 3

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