Garner v. Wheeler-White et al (INMATE 2)

Filing 3

REPORT AND RECOMMENDATIONS 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); Objections to R&R due by 6/3/2009. Signed by Honorable Terry F. Moorer on 5/18/09. (djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ S H E IL A GARNER, #209 055, 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-424-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 May 11, 2009.1 In this petition, Petitioner seeks an award of

credit for time served on probation with respect to her 2007 conviction for second degree theft of property imposed upon her by the Circuit Court for Jackson 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 w h ic h the State court was held which convicted" Petitioner. 28 U.S.C. § 2241(d). Petitioner

Although the Clerk of this court stamped the present petition "filed" on May 12, 2009, Petitioner certified the petition for mailing on May 11 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 11, 2009 as the date of filing.

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se e k s credit for time served on probation with regard to her 2007 conviction and sentence

for second degree theft of property entered against her by the Circuit Court for Jackson
C o u n ty, Alabama. Jackson County is located within the jurisdiction of the United States D istrict Court for the Northern District of Alabama. In light of the foregoing, the court c o n c lu d e s that the transfer of this case to such other court for review and disposition is a p p r o p r i a te .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 June 3, 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 18th day of May 2009.

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

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