McLaughlin v. Spearman

Filing 18

ORDER signed by Magistrate Judge Craig M. Kellison on 09/30/14 granting 16 Motion for an evidentiary hearing. An evidentiary hearing as to petitioner's claim for equitable tolling is set for 12/17/14 at 1:30 p.m. before the undersigned in Redding, California.The 08/18/14 findings and recommendations 15 are vacated. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MICHAEL McLAUGHLIN,

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Petitioner,

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vs.

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No. 2:13-cv-0924-CMK-P

M. SPEARMAN,

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ORDER

Respondent.

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/
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to

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dismiss the petition as untimely. Petitioner objects to the dismissal of his petition, and has

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requested the court find him eligible for equitable tolling. The undersigned issued findings and

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recommendations that the motion to dismiss be granted, finding plaintiff ineligible for equitable

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tolling. Petitioner has filed objections to the findings and recommendations, and a separate

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motion for an evidentiary hearing.

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The Ninth Circuit has determined that in most cases where equitable tolling is

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requested, an evidentairy hearing is likely to be necessary. See Roy v. Lampert, 465 F.3d 964,

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969 (9th Cir. 2006). As such, plaintiff’s request will be granted. While the undersigned is
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unsure what additional evidence petitioner has to present to the court other than what he has

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already submitted, he will be provided an opportunity to do so. The underlying findings and

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recommendations, issued on August 18, 2014, will be vacated and reissued after the evidentiary

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hearing.

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An evidentiary hearing, conducted by video conference will be set for December

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17, 2014, at 1:30 p.m., before the undersigned in Redding, California. By separate order, the

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court will issue a Writ of Habeas Corpus ad Testificandum for petitioner to appear via video

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conference for the hearing.

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Accordingly, IT IS HEREBY ORDERED that:

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Petitioner’s motion for an evidentiary hearing (Doc. 16) is granted;

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2.

An evidentiary hearing as to petitioner’s claim for equitable tolling is set

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for December 17, 2014, at 1:30 p.m., before the undersigned in Redding, California; and

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3.

The August 18, 2014, findings and recommendations (Doc. 15) are

vacated.

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DATED: September 30, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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