1

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BYRONELL M. WELLS, :

Petitioner, :

vs. : CIVIL ACTION 05-0356-CG-D

J. C. GILES, Warden, :

Respondent. :

REPORT AND RECOMMENDATION

Byronell M. Wells, a state prisoner currently in the custody of respondent, has petitioned

this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 6) Petitioner

challenges the validity of his May 18, 2001, conviction for robbery in the first degree in the

Circuit Court of Mobile County, Alabama and his sentence pursuant to the Habitual Felony

Offender Act to a term of life imprisonment. (Doc. 14, Exhibit A, p. 3-4).

This action has been referred to the undersigned Magistrate Judge for entry of a report

and recommendation as to the appropriate disposition of the issues in the petition. See 28 U.S.C.

§ 636(b)(1)(B), 28 U.S.C. § 2254, Rule 8(b)(1) and Local Rule 72.2(c)(4). Presently, this matter

is before the Court on petitioner’s petition (Doc. 6); respondent’s answer and motion to dismiss

the petition as untimely, and evidentiary submissions in support thereof (Doc. 14); and

petitioner’s response. (Doc. 16).

I. Procedural History

Petitioner was indicted during the February 2001 term of the Mobile County Grand Jury

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 The facts of the case, summarized in the Alabama Board of Pardons and Paroles Report

of Investigation, are as follows: 

On Sunday December 24, 2000 at approximately 1:00 p.m. Paul Jackson, 47, was selling

newspapers at the corner of St. Stephens Road and North Catherine Street. A black male subject

riding a green bicycle approached him and asked to buy a newspaper, and if Jackson had change

for a $5.00 bill. Jackson told the subject that he did have change, at which time the subject

produced a chrome semi-automatic handgun and told Jackson to give it up. The victim told the

subject that he only had what was in his top pocket and gave him $15.00. The suspect then got

on his bicycle and preceded (sic) north on Catherine Street. 

Within moments, the victim flagged down an approaching police vehicle and notified

them of the robbery and pointed out the suspect as he fled. Officer B. Dunn and Officer L.

Thomas gave pursuit of the suspect. The subject went behind the shopping center [at] 1560 St.

Stephens Road and as officers pursued him, he ran north to the rear parking lot. He was taking

off articles of clothing as he was running. Officer Dunn pursued the suspect to the back yard of

a house at the rear of the parking lot where he was apprehended, about 200 yards from the scene

of the robbery. Officers recovered the articles of clothing, and a black holster for a pistol. 

The subject was transported to police headquarters and was identified as Byronell

Marquis Wells. Wells was read his Miranda warnings and agreed to give police a statement. 

Wells initially stated that he asked the man for a newspaper, and the man gave him a newspaper

and a $1.00 bill back. Wells stated that the man was wearing headphones and he yelled at him to

give him all his money back. According to Wells, the subject gave him a handful of money. 

Wells said he did not count the money, but put it in his pocket and rode away. Wells said when

he saw the police coming and heard the subject yelling that he had been robbed, he ran because

he was scared. 

Wells later changed his story and said that he asked the subject for change for a $5.00 bill

and that the subject gave him change including some quarters. Wells said that he was riding

away when he saw the police and heard the subject saying that he had been robbed. Wells could

give police no explanation of the pistol holder that was found on the ground. Police recovered a

total of $20.99 from Wells. He was booked in the Mobile Metro Jail and charged with Robbery

1st Degree in connection with this offense. 

On the same date, Mobile Police Officers returned to the scene of the robbery and arrest

and recovered a chrome .25 caliber semi-automatic handgun behind the dumpster located at 1560

St. Stephens Road. The handgun was photographed and recovered as evidence. 

(Doc. 14, attachment 3, p. 108-109).

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for robbery in the first degree. (Doc. 14, Exhibit A, C. p.1, 5-6 ) 1

 He plead not guilty and on 

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 See Nix v. Secretary for the Dept. Of Corrections, 393 F.3d 1235(11th Cir. 2004) (the

petitioner’s conviction became final on the date that the 90-day period for seeking certiorari

review with the United States Supreme Court expired); Jackson v. Secretary for the Dept. of

Corrections, 292 F.3d 1347, 1348-49 (11th Cir. 2002) (§2255) 

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May 17, 2001, his trial began (Doc. 14, Exhibit A, C, p. 2-3, R. 139). On May 18, 2001, the

jury found him guilty of first degree robbery and on June 28, 2001, he was sentenced pursuant to

the Habitual Felony Offender Act to a term of life imprisonment. (Doc. 14, Exhibit A, C, p. 4,

20). 

Petitioner appealed his conviction and sentence to the Alabama Court of Criminal

Appeals. (Doc. 14, Exhibit A, p. 4) On January 25, 2002, the appellate court affirmed

petitioner’s conviction and sentence in an unpublished memorandum opinion. (Id., Exhibit D) 

Petitioner filed an application for rehearing which was overruled on March 1, 2002. (Id., 

Exhibits E, F). Thereafter, petitioner sought certiorari review in the Alabama Supreme Court.

(Id., Exhibit G) The Court denied the writ on August 16, 2002, without written opinion. (Id.,

Exhibit H) A certificate of judgment was entered on August 16, 2002 and petitioner’s conviction

became final ninety (90) days thereafter on November 14, 2002. (Id., Exhibit I )2

On December 13, 2002 petitioner executed a Rule 32 petition. (Id., Exhibit J, pp. 8-23) 

On February 7, 2003, the trial court entered an order denying the petition. (Id. at p. 24) 

Petitioner filed a written Notice of Appeal with the Alabama Court of Criminal Appeals on

March 12, 2003. (Id. at p. 28) On June 20, 2003, in an unpublished memorandum, the Alabama

Court of Criminal Appeals affirmed the trial court’s denial of petitioner’s Rule 32 petition. (Id.,

Exhibit M) Petitioner did not file an application for rehearing, nor did he file a petition for

certiorari review. On July 8, 2003 the Alabama Court of Criminal Appeals issued a certificate of

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 Respondent further argues that petitioner failed to exhaust his claims for purposes of

habeas corpus review. Respondent asserts that the “claim of ineffective assistance of trial

counsel is presented for the first time in this court” and that although the remaining claims were

raised “during the Rule 32 proceedings, [petitioner] either failed to appeal the claim (lack of

notice claim, failure to conduct an evidentiary hearing claim, and introduction into evidence of

the gun claim) or appealed the claim (proper certification of the prior convictions claim) but

failed to seek certiorari review in the Alabama Supreme Court”; thus, all claims are now

procedurally barred. (Doc. 14 at p. 8-10) The court does not reach the issue of procedural

default however, because it has determined that the petition is untimely under the Anti-Terrorism

and Effective Death Penalty Act of 1996, § 101(Supp. II 1997) (“AEDPA”) and the

extraordinary remedy of equitable tolling is not warranted in this circumstance. 

However, the undersigned notes that all of petitioner’s claims appear to be procedurally

barred since petitioner failed to exhaust them in his direct review or his Rule 32 petition. See

Dill v. Holt, 371 F.3d 1301, 1303 (11th Cir. 2004) (“Under Alabama law, ‘one complete round’

of review [ ] includes: (1) filing a petition for certiorari in state circuit court; (2) appealing the

denial of that petition to the Alabama Court of Criminal Appeals; (3) petitioning the Alabama

Court of Criminal Appeals for rehearing, and (4) seeking discretionary review in the Alabama

Supreme Court....”). 

In his federal habeas petition, petitioner argues that the Habitual Felony Offender Act

should not have been applied; that petitioner was not aware of a gun that DA “entered into

evidence, neither did petitioner counsel suppress evidence of gun” (sic); that petitioner should

have had an evidentiary hearing on his Rule 32 petition; and ineffective assistance of trial

counsel. (Doc. 6). In his Rule 32 petition, petitioner raised four issues: He asserted that he was

not aware of the gun that the District Attorney entered into evidence and “neither did petitioner’s

councle (surpress) evedence of gun (sic);” he asserted that the victim testified at trial that

petitioner had a “.25 automatic with a (clip in a clip)”, however, the “gun that was presented in

court was without a clip attachment”; he asserted that finger print analysis was “never taken to

prove without reasonable doubt that gun belonged to defendant”; and he asserted that the

Habitual Offender Act should not have been applied because proper proof of the prior

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final judgment. (Doc. 14, Exhibit N) Over a year later, on August 3, 2004, petitioner filed an

application for rehearing. (Doc. 14, Exhibit O) On August 9, 2004, the Alabama Court of

Criminal Appeals issued an order striking the application on the grounds that it was untimely

filed. (Doc. 14, Exhibit P) 

On July 25, 2005, petitioner filed the instant petition seeking relief from his conviction

and sentence. (Doc. 6) On November 2, 2005, the State of Alabama filed an answer and motion

to dismiss arguing, in part, that the petition should be dismissed as untimely filed. (Doc. 14) 3

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convictions was not offered. (Doc. 14, Exhibit 11) On direct appeal in the state court, petitioner

raised two issues: “Whether the accused receives a fair trial where the jury empaneled to try him

has been informed that he is known around jails” and “[w]hether the appellant is entitled to a

lesser included charge of robbery in the third degree where there is evidence that he was not

armed during the time of the alleged robbery.” (Doc. 14, Exhibit 3). 

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 On May 6, 2005 petitioner filed a handwritten document entitled “Motion to Suspend

Rules.” (Doc. 1) By order dated June 24, 2005, the court forwarded petitioner a habeas form 

advising that if it was petitioner’s intent to file a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 he should complete the form and submit it to the court. (Doc. 3) Petitioner

subsequently completed a petition for writ of habeas corpus which reached this court on August

10, 2005. (Doc. 6) Although the petition bears a file stamped date of August 10, 2005, under the

"mailbox rule," the document is deemed filed on July 25, 2005, the date when the petition was

executed and presumably submitted to the prison authorities for mailing. See Adams v. United

States, 173 F.3d 1339, 1341 (11th Cir.1999) (under the "mailbox rule," a pro se prisoner's

motion to vacate, set aside, or correct sentence was filed on the date that he signed, executed,

and delivered his petition to prison authorities for mailing)

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This court entered an order directing petitioner to show cause why the States’ motion to dismiss

should not be granted. (Doc. 15) The petitioner filed a response captioned “Motion for an Out

of Time Appeal to the Southern District of Alabama.” (Doc. 16). 

I. Analysis

 Respondent argues, inter alia, that petitioner’s habeas corpus petition, filed on July 25,

2005 4 is barred by the one-year statute of limitations pursuant to 28 U.S.C. § 2244(d)(1). (Docs.

6, 14). Thus, petitioner’s habeas corpus petition is due to be dismissed because it was not filed

within one year of the date petitioner’s conviction became final as required under the AntiTerrorism and Effective Death Penalty Act of 1996, § 101(Supp. II 1997) (“AEDPA”) (Doc. 14) 

AEDPA, which became effective on April 24, 1996, provides that a petitioner has one year from

“the date on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review” to file a federal habeas corpus petition. 28

U.S.C.§ 2244(d)(1)(A). 

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 "A petition for a writ of certiorari seeking review of a judgment of a lower state court

that is subject to discretionary review by the state court of last resort is timely when it is filed

with the clerk within ninety (90) days after entry of the order denying discretionary review." See

Sup.Ct. R. 13. (emphasis added) When calculating the timeliness of a habeas petition brought

under section 2254 the Eleventh Circuit has stated that the conviction does not become final until

“90 days after entry of judgment in the state court of last resort.” Jackson v. Secretary for the

Dept. of Corrections, 292 F.3d 1347, 1348-49 (11th Cir. 2002)

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By order dated August 16, 2002, after the Alabama Supreme Court denied the petition for

writ of certiorari, the Alabama Court of Criminal Appeals issued a certificate of final judgment

on direct appeal. (Doc. 14, Exhibit I ) For purposes of applying the AEDPA’s statute of

limitations, the one year statute of limitations began to run on November 14, 20025, the date

petitioner’s conviction and sentence became “final” after ninety (90) days from the date of the

certificate of final judgment on direct appeal. (Id., Exhibit I ) Petitioner had a total of one year

(365 days) from November 15, 2002 to November 15, 2003 in which to file his federal habeas

corpus petition. See Bond v. Moore, 309 F. 3d 770, 774 (11th Cir. 2002)

Petitioner did not file the instant habeas petition until July 25, 2005. However, pursuant

to the statute, the one year limitations period may be tolled if petitioner timely filed a Rule 32

petition since “[t]he time during which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is pending shall not be

counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). 

Petitioner timely filed a Rule 32 petition on December 13, 2002 and tolled the running of his one

year statute of limitation after the passing of 28 days. (Id., Exhibit J, pp. 8-23) On February 7,

2003, the trial court entered an order denying the petition. (Id. at p. 24) Petitioner appealed to

the Alabama Court of Criminal Appeals on March 12, 2003. (Id. at p. 28) On June 20, 2003, in

an unpublished memorandum, the Alabama Court of Criminal Appeals affirmed the trial court’s

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 Petitioner’s “appeal” of the Court of Criminal Appeals’ decision affirming the trial

court’s denial of the Rule 32 petition was due on July 3, 2003, which is prior to the time

petitioner alleges he was transferred to an out-of-state facility. A full review by Alabama's

intermediate appellate court is a prerequisite to certiorari review by the Alabama Supreme Court.

See Ala. R. App. P. 40(d)(1) ("In all criminal cases except pretrial appeals by the state, the filing

of an application for rehearing in the Alabama Court of Criminal Appeals is a prerequisite to

certiorari review by the Alabama Supreme Court.") Thus, petitioner would have had to file an

application for rehearing in the Court of Criminal Appeals by July 3, 2003 prior to filing an

application for writ of certiorari in the Alabama Supreme Court. See Ala. R App. Proc.

40(c)(“An application for rehearing and the brief in support of the application must be filed with

the clerk of the appropriate appellate court within 14 days (2 weeks) of the date the decision

being questioned is issued....” ) 

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denial of petitioner’s Rule 32 petition. (Id., Exhibit M) Petitioner did not file an application for

rehearing, nor did he file a petition for certiorari review. On July 8, 2003 the Alabama Court of

Criminal Appeals issued a certificate of final judgment on the Rule 32 petition. (Id., Exhibit N) 

At this time, petitioner’s one year statute of limitations period was no longer tolled. 

Thus, for purposes of applying the AEDPA, the one year statute of limitations began to run again

on July 8, 2003. Petitioner then had 337 days or until June 9, 2004 to file his petition for habeas

corpus with this court. However, petitioner did not file the instant habeas petition until July 25,

2005, over a year after the federal statute of limitations had expired. (Doc. 6). 

On December 9, 2005, petitioner filed a pleading captioned “Motion for an Out of Time

Appeal” which appears to be filed in response to this court’s order of November 8, 2005 wherein

he was ordered to show cause why his federal habeas petition was not filed within the one year

statute of limitations. (Docs. 15, 16) In the pleading, petitioner argues that his failure to timely

appeal the appellate affirmance of the denial of his Rule 32 petition, which was entered on June

20, 2003, was due to his transfer out of state from July 9, 2003 until March 7, 2004 to ease

prison overcrowding. (Doc. 16) 6 He applies the same argument to his failure to timely file his

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federal habeas petition. (Doc. 16, p.2) Petitioner points out that the transfer was through no fault

of his own and that because of the transfer he did not have proper materials, i.e., access to

Alabama law, during the time period. He also argues that he was not aware of the law regarding

statute of limitations because he is in prison for the first time and did not know the procedure. 

Petitioner also raises the argument that he had ineffective assistance of appellate counsel who did

not work on his case in petitioner’s best interest. Lastly, he argues that the court should be openminded and allow him the opportunity to try to correct his situation because he will be

incarcerated for a long period of time. (Doc. 16) 

 While it is clear that petitioner's habeas petition was untimely filed, before

recommending dismissal, the undersigned must ascertain whether the petitioner has pled

extraordinary circumstances which would justify equitable tolling of the limitations period. The

Eleventh Circuit has stated that:

Section 2244 is a statute of limitations, not a jurisdictional bar. Therefore, it

permits equitable tolling “when a movant untimely files because of extraordinary

circumstances that are both beyond his control and unavoidable even with

diligence.” Sandvik v. United States, 177 F.3d 1269[, 1271 (11th Cir. 1999)]. 

Equitable tolling is an extraordinary remedy which is typically applied sparingly. 

See Irwin v. Dept. Of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112

L.Ed.2d 435 (1990).

Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). See also Miller v. New Jersey State Dept.

of Corrections, 145 F.3d 616, 618-19 (3rd Cir. 1998)(“equitable tolling is proper only when the

‘principles of equity would make [the] rigid application [of a limitation period] unfair.’...

[g]enerally, this will occur when the petitioner has ‘in some extraordinary way...been prevented

from asserting his or her rights.’...[t]he petitioner must show that he or she ‘exercised reasonable

diligence in investigating and bringing [the] claims.’... [m]ere excusable neglect is not

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 The Court opined, in pertinent part,:

[A] defendant can also overcome the procedural bar created by the failure to

appeal if he could show a fundamental miscarriage of justice; ‘in an extraordinary

case, where a constitutional violation has probably resulted in the conviction of

one who is actually innocent, a federal habeas court may grant the writ even in the

absence of a showing of cause for the procedural default.’

Id. at 1120 (quoting Mills v. United States, 36 F.3d 1052,1055 (11th Cir. 1994) Accordingly,

assuming the Eleventh Circuit would recognize the “actual innocence” exception as applied to

the AEDPA statute of limitations, petitioner must present reliable evidence not previously

presented at trial showing that no reasonable juror would have adjudged him guilty beyond a

reasonable doubt.

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sufficient.”). Moreover, in the Eleventh Circuit, as a general rule, “the ‘extraordinary

circumstances’ standard applied in this circuit focuses on the circumstances surrounding the late

filing of the federal habeas petition, rather than the circumstances surrounding the underlying

conviction.” Helton v. Secretary of Dept. of Corrections, 259 F.3d 1310, 1314 (11th Cir.), cert.

denied, 535 U.S. 1080, 122 S.Ct. 1965 (2002); Drew v. Department of Corrections, 297 F.3d

1278, 1286-87 (11th Cir. 2002). Recently, the Eleventh Circuit has indicated that a showing of

“actual innocence” may also be a recognized exception to the AEDPA’s one year statute of

limitations. U.S. v. Montano, 398 F.3d 1276, 1284 (11th Cir. 2005) (“Actual innocence is not

itself a substantive claim, but rather serves only to lift the procedural bar caused by Appellant’s

failure to timely file his §2255 motion.” ) 7

Petitioner fails to provide the court with any facts or circumstances to support an 

equitable tolling argument. See, e.g., Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)

(holding that, although equitable tolling can in certain circumstances apply to toll the AEDPA

limitation period, it did not apply where the petitioner "does not indicate why he waited until

March 1998 to pursue federal habeas corpus relief"); Bilodeau v. Angelone, 39 F. Supp. 2d 652,

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659 (E.D.Va.1999) (declining to enlarge time for filing habeas petition where petitioner "has

done nothing to explain to this Court's satisfaction his reason for such an inordinate delay"). 

Petitioner argues that his out of state transfer precluded his timely filing. However, he 

also states that he returned to Alabama on March 7, 2004. Thus, at that time, he still had until

June 9, 2004 or 94 days to timely file his petition for habeas corpus. Also, even though he was

in Alabama and had access to Alabama law for research, he waited until August 3, 2004, after

the June 9, 2004 deadline had passed, to apply for rehearing in the Alabama Court of Criminal

Appeals which was stricken as untimely on August 9, 2004. (Doc. 14, Exhibits 0, P) At this

point, petitioner then waited almost another year until July 25, 2005, to file his federal habeas

petition. 

Petitioner argues that equitable tolling is necessitated since he is in prison for the first

time and does not know the procedures necessary to timely present his issues. (Doc. 16, p. 2) 

However, the Eleventh Circuit has opined that "[i]gnorance of the law usually is not a factor that

can warrant equitable tolling." Wakefield v. Railroad Retirement Bd., 131 F.3d 967, 970 (11th

Cir.1997); see also Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999), cert denied, 528

U.S. 1007, 120 S.Ct. 504, 145 L.Ed. 2d 389 (1999)(holding that AEDPA's limitation period not

equitably tolled because "neither a plaintiff's unfamiliarity with the legal process nor his lack of

representation during the applicable filing period merits equitable tolling.... It is irrelevant

whether the unfamiliarity is due to illiteracy or any other reason."). 

Petitioner also argues that he had ineffective assistance of appellate counsel who did not

act in his best interest. He submitted only this single statement and did not provide the court

with any facts to illustrate how his appellate counsel’s actions prevented him from filing his

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federal habeas petition. However, negligent acts by an attorney are generally not a basis for

equitable tolling. See Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005) quoting Howell

v. Crosby, 415 F.3d 1250, 1250 (11th Cir. 2005) ( “Making the most of a novel argument,

Lawrence posits that the State's provision to him of an incompetent attorney justifies the

imposition of equitable tolling. This is not an extraordinary circumstance that warrants the

application of equitable tolling. Moreover, we have stated on numerous occasions that ‘attorney

negligence is not a basis for equitable tolling, especially when the petitioner cannot establish his

own diligence in ascertaining the federal habeas filing deadline.’”); see also McLester v. Hopper,

67 F.Supp.2d 1308, 1311-1312 (M.D.Ala.,1999) (citing Justice v. U.S.A., 6 F.3d 1474, 1480

(11th Cir. 1993))("[p]rinciples of equitable tolling...do not extend to what is at best a garden

variety claim of excusable neglect.") 

In the final analysis, the Court finds that petitioner has not presented sufficient evidence

to warrant equitable tolling. The Court’s review of the record in this action does not reflect any

justification for the late filing of the petition for habeas corpus and petitioner has offered no

extraordinary circumstances to justify the out-of-time adjudication of his petition, filed more

than 411 days after the federal statute of limitations had run. Moreover, the undersigned notes

that the petitioner has not set forth any facts to support equitable tolling based on a fundamental

miscarriage of justice. Accordingly, it is the recommendation of the undersigned that

petitioner’s habeas petitions be dismissed as time-barred. 

III. Conclusion

The undersigned has reviewed the pleadings and finds that the petitioner has presented no

“extraordinary circumstances” that would justify the out-of-time adjudication of his petition. 

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Accordingly, since the petitioner has provided no basis for equitable tolling, it is the

recommendation of the undersigned magistrate judge that petitioner’s petition for writ of habeas

corpus be dismissed as time barred pursuant to 28 U.S.C. § 2254(d). 

The attached sheet contains important information regarding objections to the Report and 

Recommendation.

DONE this the 19th day of December 2005. 

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES MAGISTRATE JUDGE

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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. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988). 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, in part, 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. Opposing party’s response to the objection. Any opposing party may submit a brief

opposing the objection within ten (10) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. 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.

KRISTI K. DuBOSE

UNITED STATES MAGISTRATE JUDGE

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