Muth v. Fondren

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 23 Report and Recommendation; denying 9 Motion to Dismiss filed by Dwight L. Fondren. Petitioners Petition for Writ of Habeas Corpus is transferred to United States District Judge Jack D. Shanstrom, United States District Court - District of Montana(Written Opinion). Signed by Judge Donovan W. Frank on 9/2/09. (GMO)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Seth Muth, Petitioner, v. Dwight L. Fondren, Warden, Sandstone F.C.I., Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION Civil No. 08-6513 (DWF/FLN)

Katherine Menendez, Assistant Federal Defender, Office of the Federal Defender, counsel for Petitioner. Ana H. Voss, and Gregory G. Brooker, Assistant United States Attorneys, United States Attorney's Office, counsel for Defendant.

This matter is before the Court upon Petitioner Seth Muth's ("Petitioner") objections to Magistrate Judge Franklin L. Noel's Report and Recommendation filed July 9, 2009, recommending that the Petitioner's Petition for Writ of Habeas Corpus be transferred to United States District Judge Jack D. Shanstrom, United States District Court - District of Montana and that the Government's Motion to Dismiss be denied. The Court has conducted a de novo review of the record, including a review of the arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.2(b). The factual background for the above-entitled matter is clearly and

precisely set forth in the Report and Recommendation and is incorporated by reference for purposes of Petitioner's objections. Based upon the de novo review of the record and all of the arguments and submissions of the parties and the Court being otherwise duly advised in the premises, the Court hereby enters the following: ORDER 1. Petitioner Seth Muth does not object to the recommendation that his

Petition for Writ of Habeas Corpus be transferred to the District of Montana and considered by the judge who originally handled his criminal case, the Honorable Jack D. Shanstrom. Further, Petitioner does not object to the recommendation that Respondent's Motion to Dismiss should be denied given that the matter shall be transferred and decided by the United States District Court - District of Montana. 2. Petitioner Seth Muth's objections (Doc. No. 26), as they relate to the

analysis of the Report and Recommendation in evaluating the proper procedural status of the case, are DENIED AS MOOT in light of the transfer of the case to the United States District Court - District of Montana. 3. Magistrate Judge Franklin L. Noel's Report and Recommendation filed

July 9, 2009 (Doc. No. 23), is ADOPTED. 4. Petitioner's Petition for Writ of Habeas Corpus is transferred to

United States District Judge Jack D. Shanstrom, United States District Court - District of Montana. Rule 4 of the Rules Governing § 2255 proceedings provides that if Judge

Shanstrom is not available, the Clerk must forward the motion to a judge under the court's assignment procedure. 5. The Government's Motion to Dismiss (Doc. No. 9) is DENIED.

Dated: September 2, 2009

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

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