Talbott v. Fisher

Filing 43

ORDER ADOPTING 38 REPORT AND RECOMMENDATION: 1. Petitioner Richard D. Talbott's motion to amend [Docket No. 40] is GRANTED. 2. Talbott's motion to present supplemental authority [Docket No. 42] is GRANTED. 3. The Court OVERRULES Talbott& #039;s objection [Docket No. 39] and ADOPTS Judge Keyes's Report and Recommendation [Docket No. 38]. 4. Talbott's petition for a writ of habeas corpus [Docket No. 1] is DENIED. 5. This case is DISMISSED WITH PREJUDICE (Written Opinion). Signed by Judge Patrick J. Schiltz on 5/27/11. (LPH)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RICHARD D. TALBOTT,

Case No. 10-CV-1553 (PJS/JJK)

Petitioner,
v.

ORDER

SCOTT FISHER, Warden,
Defendant.

Richard D. Talbott, pro se.
Lisa D. Kirkpatrick, UNITED STATES ATTORNEY’S OFFICE, for defendant.
Petitioner Richard D. Talbott seeks to be released from federal custody through a petition
under 28 U.S.C. § 2241 for a writ of habeas corpus. After initially moving to dismiss for lack of
jurisdiction, the government changed course and opposed the petition on the merits. See Order
Dec. 20, 2010 [Docket No. 29] (describing procedural history); Gov’t Return to Pet. [Docket
No. 35].
Talbott’s petition was referred to Magistrate Judge Jeffrey J. Keyes. Judge Keyes
considered Talbott’s petition, the government’s opposition, and Talbott’s reply in support of his
petition. In a Report and Recommendation (“R&R”) dated April 5, 2011, Judge Keyes
recommends denying Talbott’s petition and dismissing this case with prejudice.
Talbott objects to Judge Keyes’s R&R. He has set forth his objections in four
documents: (1) an objection [Docket No. 39]; (2) a “Petition to Amend” his objection [Docket
No. 40]; (3) a “Petition to Supplement” his objection [Docket No. 41]; and (4) a “Motion to
Present Supplemental Authority” in support of his objection [Docket No. 42]. The government
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did not respond to Talbott’s objection, which was unfortunate, as Talbott’s objection was far
from frivolous, and the Court would have welcomed a response from the government.
That said, the Court has carefully considered all of the documents submitted by Talbott in
support of his objection, and the Court has reviewed de novo those portions of the R&R to which
Talbott has objected, as required by 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). Having
closely examined both Ind. Code § 35-42-2-1, Sec. 1(a)(3) and the relevant case law, the Court
agrees with Judge Keyes’s analysis and conclusions. The Court therefore overrules Talbott’s
objection and adopts Judge Keyes’s thorough and well-reasoned R&R.
ORDER
Based on the foregoing and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

Petitioner Richard D. Talbott ’s motion to amend [Docket No. 40] is GRANTED.

2.

Talbott ’s motion to present supplemental authority [Docket No. 42] is
GRANTED.

3.

The Court OVERRULES Talbott’s objection [Docket No. 39] and ADOPTS
Judge Keyes’s Report and Recommendation [Docket No. 38].

4.

Talbott’s petition for a writ of habeas corpus [Docket No. 1] is DENIED.

5.

This case is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 27, 2011

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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