Holt et al v. State of Alabama et al (INMATE 2)

Filing 3

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Samuel Holt, Deborah Holt, 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 7/2/2009. Signed by Honorable Charles S. Coody on 6/19/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ S A M U E L HOLT, #166 996 D E B O R A H HOLT, #263 214, P e titio n e r s, * v. * STATE OF ALABAMA, et al., * R e s p o n d e n ts . _____________________________ 2:09-CV-561-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 c o r p u s relief filed by Petitioners on June 8, 2009.1 In this petition, Petitioners seek to

challenge their 2007 convictions and sentences for possession of burglary tools entered against them by the Circuit Court for Morgan 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 rs' application for writ of habeas corpus to "the district court for the district within w h ich the State court was held which convicted" Petitioners. 28 U.S.C. § 2241(d).

Although the Clerk of this court stamped the present petition "filed" on June 15, 2009, the petition was certified for mailing on June 8, 2009. Accordingly, for purposes of this Recommendation, the court considers June 8, 2009 as the date of filing. See 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).

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P e titio n e rs seek to challenge their convictions and sentences imposed in 2007 by the Circuit C o u rt for Morgan County, Alabama. Morgan County is located within the jurisdiction of the U n ite d States District Court for the Northern District of Alabama. In light of the foregoing, th e court concludes that the transfer of this case to such other court for review and d is p o s itio n 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 Northern District of Alabama p u rs u a 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 July 2, 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 Petitioners' c la im s for relief nor whether they have exhausted available state court remedies prior to filing a federal habeas p etition as required by 28 U.S.C.§ 2244(b)(1)(A).
An affidavit in support of a request for leave to proceed in forma pauperis has been filed by Petitioner S a m Holt. Under the circumstances of this case, however, matters related to Petitioners' in forma pauperis status, in c l u d in g the assessment and collection of any filing fee, should be undertaken by the United States District Court f o r 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. D o n e , this 19 th day of June 2009.

/s/ Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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