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Jurisdiction: Alabama Middle District Court
Decision Date: 9/29/2014

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        May v. Forniss May v. Forniss (M.D. Ala., 2014)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        SHERWIN FITZGERALD MAY, # 157669, Petitioner,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        LEON FORNISS, et al Respondents.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Civil Action No. 2: 14cv966-WKW (WO)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 29, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        SHERWIN FITZGERALD MAY, # 157669, Petitioner, v. LEON FORNISS, et al Respondents.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Civil Action No. 2: 14cv966-WKW (WO)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 29, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        RECOMMENDATION OF THE MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This cause is before the court on a pro se 28 U.S.C. § 2254 petition for habeas corpus relief filed on September 6, 2014, by Sherwin Fitzgerald May ("May"), a state inmate incarcerated at Staton Correctional Facility in Elmore, Alabama. Doc. # 1. May challenges his 2009 conviction in the Circuit Court of Tuscaloosa County, Alabama, for robbery in the first degree. He was sentenced to life in prison.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISCUSSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This court, "in the exercise of its discretion and in furtherance of justice, " may transfer a petitioner's application for writ of habeas corpus to "the district court for the district within which the State court was held which convicted and sentenced the petitioner. " See 28 U.S.C. § 2241(d). May challenges his conviction and sentence entered by the Circuit Court of Tuscaloosa County, Alabama. Tuscaloosa County is located within the jurisdiction of the United States District Court for the Northern District of Alabama. Consequently, this court concludes that the transfer of this case to such other court for hearing and determination is

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        appropriate.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CONCLUSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case be TRANSFERRED to the United States District Court for the Northern District of Alabama under the provisions of 28 U.S.C. § 2241(d).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                It is further

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                ORDERED that the parties are DIRECTED to file any objections to the Recommendation on or before October 13, 2014. 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; 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 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 (5 Cir. 1982). See Stein v. Reynolds Securities, Inc 667 F.2d 33 (11 Cir. 1982). See also Bonner v. City of Prichard 661 F.2d 1206 (11 Cir. 1981) (en banc), adopting as binding precedent all of the

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Done this 29 day of September, 2014.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/Charles S. Coody        CHARLES S. COODY        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 A decision on May's application for in forma pauperis status (Doc. # 2) is reserved for ruling by the United States District Court for the Northern District of Alabama.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 A decision on May's application for in forma pauperis status (Doc. # 2) is reserved for ruling by the United States District Court for the Northern District of Alabama.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Nettles v. Wainwright, 677 F.2d 404 (5th Cir., 1982)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1982-05-17 Citations: 15
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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