Wilkes v. Wheeler-White et al (INMATE 3)

Filing 2

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 6/10/2009. Signed by Honorable Terry F. Moorer on 5/28/2009. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A R L E N E KAY WILKES, # 213726, P e titio n e r, v. CYNTHIA S. WHEELER-WHITE, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) )

Civil Action No. 2:09cv464- I D (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is case is before the court on a pro se 28 U.S.C. § 2254 petition for habeas corpus relief filed by Marlene Kay ("Wilkes"), an Alabama inmate incarcerated at ADOC Work R e l ie f in Birmingham. Wilkes challenges the sentence she received for second-degree f o rg e ry convictions entered against her in February 2008 by the Circuit Court for Cullman C o u n ty, Alabama, a state trial court. 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 a n application for writ of habeas corpus to "the district court for the district within which the S ta te court was held which convicted" the petitioner. 28 U.S.C. § 2241(d). Wilkes c h a lle n g e s a sentence entered against her by the Circuit Court for Cullman County, Alabama. C u llm a n County is located within the jurisdiction of the United States District Court for the N o rth e rn District of Alabama. In light of the foregoing, this court concludes that transfer of

th is case to such other court for review and disposition is appropriate.1 C O N C L U SIO N A c c o r d in g ly, 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 rs u a n t to the provisions of 28 U.S.C. § 2241(d). It is further ORDERED that on or before June 10, 2009, the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is t ra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d

Although her allegations in this regard are vague, Wilkes also appears to seek placement in a community correctional facility and to assert a cursory claim of prison overcrowding. In transferring the present case, this court makes no determination with respect to the merits of any of Wilkes's claims and deems such matters as more appropriately addressed by the United States District Court for the Northern District of Alabama. This court notes that Wilkes did not submit the $5.00 filing fee with her petition or file a motion for leave to proceed in forma pauperis. 2

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3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e this 28 th day of May, 2009.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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