ROLLE v. LANGFORD

Filing 25

ORDER rejecting 19 Report and Recommendation. Signed by CHIEF JUDGE M CASEY RODGERS on 8/9/2012. This matter remanded to the magistrate judge to consider the following: (1) whether the arguments raised in the objections and the documents attached thereto justify equitable tolling in this case; and (2) whether a stay and abeyance is appropriate under the factors set out in Rhines. (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
TOBIAS L. ROLLE,
Petitioner,
v.

CASE NO. 4:10cv152-MP-CAS

EDWIN G. BUSS, et al.,
Respondents.
_____________________________/
ORDER
This matter is before the court on the Report and Recommendation of the
magistrate judge (doc. 19), to which petitioner objected (doc. 20). Additionally, the
petitioner has moved to expand the record to include consideration of documents attached
to his objections. (See doc. 21). Finally, he has also moved to stay the instant petition so
that he can return to state court to pursue a 3.850 motion based on newly discovered
evidence. (See doc. 23). The Supreme Court in Rhines v. Weber, 544 U.S. 269, 125 S.Ct.
1528, 161 L.Ed.2d 440 (2005), held that a district court has discretion to grant a stay and
abeyance if (1) the petitioner had “good cause” for failing to exhaust the claims in state
court; (2) the unexhausted claims are “potentially meritorious;” and (3) “there is no
indication that the petitioner engaged in intentionally dilatory litigation tactics.”
Accordingly, it is now ORDERED as follows:
The Report and Recommendation of the magistrate judge is rejected, and this
matter remanded to the magistrate judge to consider the following: (1) whether the
arguments raised in the objections and the documents attached thereto justify equitable
tolling in this case; and (2) whether a stay and abeyance is appropriate under the factors
set out in Rhines.
DONE and ORDERED this 9th day of August, 2012.
s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE