Williams v. Hobbs

Filing 26

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATIONS 18 and returning for further submissions and proceedings as needed on possible equitable tolling. Signed by Judge D. P. Marshall Jr. on 9/8/11. (kpr)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION PHILLIP D. WILLIAMS, ADC #115975 v. PETITIONER Case No. 5:11-cv-28-DPM ARTIS RAY HOBBS, Director, Arkansas Department of Correction RESPONDENT ORDER The Court has considered Magistrate Judge Joe J. Volpe's proposed findings and recommended disposition, Document No. 18, and Williams's objection, Document No. 22, on de novo review. FED. R. Cry. P. 72(b)(3). The Court appreciates, agrees with, and adopts Judge Volpe's limitations analysis with one exception: in his objection, Williams has begun developing an equitable tolling argument; this argument needs to be explored based on the materials Williams submitted with his objection, other submissions, and perhaps a non-merits evidentiary hearing if Judge Volpe concludes one is needed. As the Magistrate Judge recognized, Document No. 18, at 6-7, here Williams must climb a high hill, showing both extraordinary circumstances and diligence to allow any federal court to consider on the merits what is an otherwise untimely claim. Holland v. Florida, 130 5. Ct. 2549 (2010); U.S. v. Martin, 408 F.3d 1089 (8th Cir. 2005). Whether Williams can climb that hill will depend on what the fuller record on equitable tolling reveals. Proposed Findings and Recommended Disposition, Document No. 18, adopted in part, rejected in part, and returned for further submissions and proceedings as needed on possible equitable tolling. FED. R. Cry. P. 72(b)(3). 50 Ordered. -2­

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