Bell v. Jones et al (INMATE2)

Filing 2

REPORT AND RECOMMENDATIONS 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 12/21/2009. Signed by Honorable Terry F. Moorer on 12/7/2009. (cc, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _______________________________ D A R R IU S BRYANT BELL, #149 992 P e t i t io n e r , v. K E N N E T H JONES, WARDEN, et al., R e s p o n d e n ts . _______________________________ * * * * * 2:09-CV-1083-ID (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h e instant cause of action is pending before this court on a 28 U.S.C. 2254 petition f o r habeas corpus relief filed by Darrius Bell, a state inmate, on November 25, 2009.1 In th is petition, Petitioner seeks to challenge matters associated with the revocation of his parole in 2009 by the Circuit Court for Jefferson County, Alabama, for violating the Alabama C o m m u n ity Notification Act. Petitioner was convicted of first degree robbery and first d e g re e rape by the Circuit Court for Morgan County, Alabama, in 1988. Although the Clerk of this court stamped the present petition "filed" on November 30, 2009, Petitioner signed his petition on November 25, 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 (11 th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11 th 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" Petitioner signed it. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers November 25, 2009 as the date of filing. 1 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 l l e n g e s the revocation of his parole by by the Circuit Court for Jefferson County, A la b a m a . Jefferson 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 th a t a transfer of this case to such other court for hearing and determination is appropriate.2 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 on or before December 21, 2009 the parties are DIRECTED to file a n y objections to the Recommendation. Any objections filed must specifically identify the f in d in g s in the Magistrate Judge's Recommendation objected to. 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. Petitioner filed neither the requisite filing fee nor an affidavit in support of a request for leave to proceed in f o r m a pauperis. Under the circumstances of this case, however, matters related to Petitioner's in forma pauperis s ta tu s , including the assessment and collection of any filing fee, should be undertaken by the United States District C o u r t for the Northern District of Alabama. Thus, this court will not address Petitioner's failure to submit d o c u m e n ts necessary to a determination of his in forma pauperis status. 2 2 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 7 th day of December 2009. / s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE 3

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