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Arnold v. Hall

United States District Court, S.D. Georgia, Savannah Division

April 23, 2015

RICKY D. ARNOLD, Petitioner,
v.
WARDEN HILTON HALL, JR., Respondent.

ORDER

WILLIAM T. MOORE, Jr., District Judge.

Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 5), to which objections have been filed (Doc. 7). In his objections, Petitioner contends that his habeas petition should not be dismissed as untimely because his retained attorney was suffering from cancer and failed to timely file a state habeas petition before passing away. (Id. at 2.) Petitioner claims that, upon learning of his counsel's untimely passing, Petitioner diligently attempted to acquire his case materials and file a habeas petition on his own behalf, ultimately filing a petition in September 2013. (Id.) Based on these circumstances, Petitioner argues that his time for filing a federal habeas petition should be equitably tolled. (Id. at 1.)

This argument was not raised before the Magistrate Judge. In addition, the record before this Court is devoid of any factual development that would permit a ruling on the applicability of equitable tolling. While taking no position on the merits of Petitioner's argument, this Court's review of the limited record indicates that it is at least conceivable Petitioner could allege facts and present evidence that might entitle him to equitable tolling. Accordingly, this Court DECLINES TO ADOPT the Report and Recommendation and REMANDS this case to the Magistrate Judge to assess the habeas petition in light of Petitioner's claim for equitable tolling.

SO ORDERED.


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