United States District Court, N.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
case is before the court on a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 filed by
Timothy Wayne Weakley (“Weakley) on March 2, 2019. Doc.
No. 1. Weakley challenges the sentence imposed upon his 2017
guilty plea conviction in the Lauderdale County Circuit Court
for the offense of third-degree theft of property. In
particular, Weakley takes exception to the restitution
ordered by the trial court as part of his sentence.
28 U.S.C. § 2241(d) provides:
Where an application for a writ of habeas corpus is made by a
person in custody under the judgment and sentence of a State
court of a State which contains two or more Federal judicial
districts, the application may be filed in the district court
for the district wherein such person is in custody or in the
district court for the district within which the State court
was held which convicted and sentenced him and each of such
district courts shall have concurrent jurisdiction to
entertain the application.
28 U.S.C. § 2241(d). Thus, a petition for writ of habeas
corpus under 28 U.S.C. § 2254 should be filed either in
the federal district court for the district of the state
court where the petitioner was convicted and sentenced or the
federal district court for the district of the state where
the petitioner is incarcerated when filing the petition.
was convicted and sentenced in Lauderdale County, Alabama.
Lauderdale County is located within the federal judicial
district of the United States District Court for the Northern
District of Alabama. When he filed his petition, Weakley was
residing in the State of Tennessee and serving the
probationary part of his sentence imposed by the Lauderdale
County Circuit Court. Consequently, this court does not have
jurisdiction to entertain Weakley's § 2254 petition.
Further, since the records and witnesses relating to
Weakley's conviction and sentence are likely to be
located in the district of his conviction, it appears that
venue for Weakley's petition is appropriate in the
federal district court for the district of the state court
where he was convicted and sentenced.
28 U.S.C. § 1631, a court that finds it lacks
jurisdiction to entertain a civil action may, if it is in the
interest of justice, transfer such action to any other court
in which the action could have been brought when it was
filed. Because Weakley is proceeding pro se and
seeks § 2254 habeas corpus relief, this court believes
it would be in the interest of justice to transfer
Weakley's case to the United States District Court for
the Northern District of Alabama under §
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 28 U.S.C. § 1631.
that the parties shall file any objections to this
Recommendation on or before March 25, 2019. A party must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made;
frivolous, conclusive, or general objections will not be
considered. Failure to file written objections to the
Magistrate Judge's findings and recommendations in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
shall bar a party from a de novo determination by
the District Court of legal and factual issues covered in the
Recommendation and waives the right of the party to challenge
on appeal the District Court's order based on
unobjected-to factual and legal conclusions accepted or
adopted by the District Court except upon grounds of plain
error or manifest injustice. Nettles v. Wainwright,
677 F.2d 404 (5th Cir. 1982); 11th Cir. R. 3-1. See Stein
v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir.