(HC) Rosiles v. Pfeiffer, No. 2:2017cv02600 - Document 24 (E.D. Cal. 2018)

Court Description: ORDER signed by Magistrate Judge Gregory G. Hollows on 11/30/2018 ORDERING that Respondent shall file any opposition he desires within 30 days of the date of this Order, Petitioner shall have 20 days from the date any opposition is served to reply to that opposition, and WITHDRAWING 20 Findings and Recommendations subject to reinstatement/modification after full litigation on the equitable tolling issue. (Huang, H)
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(HC) Rosiles v. Pfeiffer Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK RENE ROSILES, 12 13 14 15 Petitioner, No. 2:17-cv-2600-KJM GGH ORDER v. C. PFEIFFER, Warden, Respondent. 16 17 Petitioner appears pro se in this habeas corpus proceeding. On October 1, 2018 18 this court issued Findings and Recommendations in which it was recommended that the 19 petition in this matter be dismissed with prejudice on the ground that the action was barred 20 by the statute of limitations found in 28 U.S.C. section 2244(d)(1). ECF No. 20. On 21 November 16, 2018 petitioner filed objections to the recommendation claiming he was 22 entitled to equitable tolling based on facts laid out in those objections. 23 The undersigned has reviewed the objections and, while recognizing that the 24 petitioner bears the burden of demonstrating his entitlement as they are set out in Holland 25 v. Florida, 560 U.S. 631, 640 (2010), and that petitioner should have set forth such facts 26 earlier, also recognizes that petitioner has now pleaded facts that indicate the equitable 27 tolling issue should be fully litigated. Thus, the undersigned will withdraw his earlier 28 Findings and Recommendations to permit respondent to formally oppose petitioner’s 1 Dockets.Justia.com 1 request for equitable tolling. 2 In light of the foregoing IT IS HEREBY ORDERED that: 3 1. 4 Respondent shall file any opposition he desires within 30 days of the date of this Order. 5 2. 6 to that opposition. 7 3. Petitioner shall have 20 days from the date any opposition is served to reply ECF 20 is withdrawn subject to reinstatement/modification after full 8 litigation on the equitable tolling issue. 9 Dated: November 30, 2018 10 11 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2