Ray v. Allen et al (INMATE 2)

Filing 4

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Michael Allen Ray, 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 11/23/2009. Signed by Honorable Terry F. Moorer on 11/10/2009. (dmn)

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ M IC A H E L ALLEN RAY, #256 513 P e t i t io n e r , v. R IC H A R D ALLEN, (C O M M IS S IO N E R A.D.O.C.) et al., R e s p o n d e n ts . _____________________________ * * * * * 2:09-CV-1012-ID (W O ) 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 rp u s filed by Petitioner on October 30, 2009.1 In this petition, Petitioner challenges his c o n v ic tio n s for first degree sexual abuse and first degree sodomy entered against him by the C irc u it Court for Cherokee County, Alabama, in 2007. 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 November 2, 2009, Petitioner certified the petition for mailing on October 30, 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 October 30, 2009 as the date of filing. 1 s e e k s to challenge convictions entered against him by the Circuit Court for Cherokee County, A la b a m a . Cherokee County is located within the jurisdiction of the United States District C o u r t for the Northern District of Alabama. In light of the foregoing, the court concludes th a t the transfer of this case to such other court for review and disposition 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 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 said R e c o m m e n d a tio n on or before November 23, 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. F a ilu re to file written objections to the proposed findings and recommendations in the M a g i s tr a t e 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 2 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. 2 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 10 th day of November 2009. /s/Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE 3

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