1Petitioner’s Motion to Proceed Without Prepayment of Fees

and Costs was denied (Doc. 3). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIE HENRY FEDRICK, JR., : 

Petitioner, : 

v. : CIVIL ACTION 05-0419-BH-M 

JIM CUMMINS, : 

Respondent. : 

REPORT AND RECOMMENDATION

Petitioner, an inmate at Frank Lee Youth Center in the

Middle District of Alabama, filed a petition for habeas corpus

relief under 28 U.S.C. § 2254 (Doc. 1) with a motion to

proceed without prepayment of fees (Doc. 2).1 Petitioner is

challenging the constitutionality of his conviction for first

degree possession of marijuana and resulting sentence,

rendered in the Circuit Court of Houston County, Alabama, in

the Middle District of Alabama. 

Due to Petitioner being incarcerated at Frank Lee Youth

Center in the Middle District and being convicted in Houston

County, Alabama, in the Middle District of Alabama, this Court

does not have jurisdiction over this habeas action. Braden v.

30th Judicial Circuit Court of Ky., 410 U.S. 484, 497-501

(1973); 28 U.S.C. § 2241. This Court, however, may transfer

this action pursuant to 28 U.S.C. § 2241(d) “in the interest

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of justice.” Dobard v. Johnson, 749 F.2d 1503, 1506-08 (11th

Cir. 1985); see also Naum v. Brown, 604 F.Supp. 1186, 1188

(E.D.N.Y. 1985) (transferring pursuant to 28 U.S.C. § 1406 to

court where jurisdiction was proper because petitioner was a

prisoner and a pauper). 

Inasmuch as the Middle District of Alabama is where

Petitioner’s conviction and sentence arose, and due to the

one-year statute of limitations requiring that § 2254

petitions be filed within one year of the conclusion of the

State’s review of a prisoner’s conviction, 28 U.S.C. §

2244(d), it is recommended that, in the interest of justice,

this action be transferred to the United States District Court

for the Middle District of Alabama for further proceedings. 

Braden, 410 U.S. at 497 (“Congress explicitly recognized the

substantial advantages of having these cases resolved in the

court which originally imposed the confinement or in the court

located nearest the site of the underlying controversy”).

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation

or anything in it must, within ten days of the date of service

of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo

determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the

factual findings of the magistrate judge. See 28 U.S.C. §

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636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.

1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). The procedure for challenging the findings

and recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by

filing a “Statement of Objection to Magistrate

Judge’s Recommendation” within ten days after being

served with a copy of the recommendation, unless a

different time is established by order. The

statement of objection shall specify those portions

of the recommendation to which objection is made and

the basis for the objection. The objecting party

shall submit to the district judge, at the time of

filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a

different disposition made. It is insufficient to

submit only a copy of the original brief submitted

to the magistrate judge, although a copy of the

original brief may be submitted or referred to and

incorporated into the brief in support of the

objection. Failure to submit a brief in support of

the objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to

a Court of Appeals; only the district judge’s order or

judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay

the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required

before the United States will pay the cost of the transcript.

DONE this 26th day of September, 2005.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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