Smith v. Brewer

Filing 10

OPINION and ORDER Denying Without Prejudice Petitioner's 2 Motion for Equitable Tolling. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ASHTON ARNIZE SMITH,
Petitioner,
Civil Case No. 16-cv-14513
Honorable Linda V. Parker

v.
SHAWN BREWER,

Respondent.
________________________________/
OPINION AND ORDER DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION FOR EQUITABLE TOLLING
Petitioner Ashton Arnize Smith (“Petitioner”), confined at the Cotton
Correctional Facility in Jackson, Michigan, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in 2010 for
second-degree murder, assault with intent to do great bodily harm less than
murder, and felony firearm. The Court has ordered Respondent to file an answer
to the petition on or before July 10, 2017. With his application for habeas relief,
Petitioner filed a motion for equitable tolling. Because the motion is premature,
the Court is denying it without prejudice.
In his motion, Petitioner asks the Court to equitably toll the one-year statute
of limitations applicable to federal habeas petitions. See 28 U.S.C. § 2244(d). At
this juncture, however, the statute of limitations is not an issue in this case.

Respondent has not filed an answer to the petition, and thus may decide not to raise
a statute of limitations defense. While the Court may raise the limitations issue on
its own motion, it is under no obligation to do so. See Day v. McDonough, 547
U.S. 198, 209 (2006). If the Court chose to raise the limitations issue, it would be
required to provide notice to Petitioner and an opportunity to respond to the
limitations question. Id. at 210-11.
Until Respondent or this Court raises the limitations issue, Petitioner’s
request for equitable tolling is premature. Petitioner may reassert any arguments
he has made in favor of equitable tolling if the issue is raised.
Accordingly,
IT IS ORDERED that Petitioner’s motion for equitable tolling (ECF No. 2)
is DENIED WITHOUT PREJUDICE.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: April 4, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, April 4, 2017, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager