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

Filing 2

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Marvin Floyd Fortenberry, 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 11/9/2009. Signed by Honorable Terry F. Moorer on 10/26/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ____________________________ M A R V I N FLOYD FORTENBERRY # 1 5 5 340 P e t i t io n e r , v. S T A T E OF ALABAMA, et al., R e s p o n d e n ts . ____________________________ * * * * * 2:09-CV-961-TMH (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P e titio n e r, Marvin Fortenberry, filed this 28 U.S.C. § 2254 petition for habeas corpus relief in this court on October 9, 2009.1 Petitioner is currently serving a term of 25 years im p ris o n m e n t following his convictions for possession of a forged instrument in the second d e g re e and first degree theft of property entered against him by the Circuit Court for Calhoun C o u n ty, Alabama on February 17, 2009. It is these convictions which Petitioner seeks to c h a lle n g e in the instant application for habeas corpus relief.

1 Although the present petition was stamped "filed" in this court on October 15, 2009, the petition was signed by Petitioner on October 9, 2009. 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). "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the instant petition] was delivered to prison authorities the day [Fortenberry] signed it . . ." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court construes October 9, 2009 as the date of filing.

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 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 c h a lle n g e s convictions entered against him by the Circuit Court for Calhoun County, A l a b a m a . Calhoun County is located within the jurisdiction of the United States District C o u rt for the Northern District of Alabama. In light of the foregoing, the court concludes t h a t the transfer of this case to such other court for hearing and/or determination is a p p ro p ri a te . CONCLUSION 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). It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before November 9, 2009. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.

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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 26 th day of October 2009.

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

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