Lewis v. Wheeler-White et al (INMATE2)

Filing 2

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Shanesta Taite Lewis, 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 7/2/2009. Signed by Honorable Susan Russ Walker on 6/19/2009. (dmn)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ SHANESTA TAITE LEWIS, #237 189 Petitioner, v. CYNTHIA WHEELER-WHITE, et al., Respondents. _____________________________ * * * * * 2:09-CV-532-ID (WO) RECOMMENDATION OF THE MAGISTRATE JUDGE This matter is pending before the court on a 28 U.S.C. 2254 petition for habeas corpus filed by Petitioner on June 4, 2009.1 In this petition, Petitioner challenges the conviction for first degree robbery entered against her by the Circuit Court for Clarke County, Alabama, on April 13, 2004. On June 1, 2004 the trial court sentenced Petitioner to a 25-year term of imprisonment. DISCUSSION This court, "in the exercise of its discretion and in furtherance of justice," may transfer Petitioner's application for writ of habeas corpus to "the district court for the district within which 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 June 8, 2009, Petitioner certified the petition for mailing on June 4, 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, 271272 (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 June 4, 2009 as the date of filing. 1 seeks to challenge a conviction and sentence entered against her by the Circuit Court for Clarke County, Alabama. Clarke County is located within the jurisdiction of the United States District Court for the Southern District of Alabama. In light of the foregoing, the court concludes that the transfer of this case to the Southern District of Alabama for review and disposition is appropriate.2 CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge 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). It is further ORDERED that the parties are DIRECTED to file any objections to the said Recommendation on or before July 2, 2009. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. 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 appealable. Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report 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 In transferring the instant case, this court makes no determination regarding the merits of Petitioner's claim for relief nor whether she has exhausted available state court remedies prior to filing a federal habeas petition as required by 28 U.S.C. 2244(b)(1)(A). 2 2 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 of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Done, this 19th day of June, 2009. /s/ Susan Russ Walker SUSAN RUSS WALKER CHIEF UNITED STATES MAGISTRATE JUDGE 3

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