Gresham #732208 v. Curtin

Filing 13

ORDER DECLINING TO ACCEPT REPORT AND RECOMMENDATION 6 ; REFERRING the matter to the magistrate judge for further consideration of the evidence presented in Petitioner's Objection and "motion for equitable tolling" 11 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GEORGE MICHAEL GRESHAM,
Petitioner,
CASE NO. 1:13-CV-1039
v.
HON. ROBERT J. JONKER
CINDI CURTIN,
Respondent.
__________________________________/
ORDER RE REPORT AND RECOMMENDATION
This matter is before the Court on Petitioner George Gresham’s Objection (docket #8) to
Magistrate Judge Hugh W. Brenneman’s Report and Recommendation (docket #6) and Petitioner’s
subsequent “motion for equitable tolling” (docket #11). When a party objects to a magistrate judge’s
report and recommendation, the “district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district judge may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instructions.” Fed. R. Civ. P. 72(b)(3). De novo review in these circumstances requires
at least a review of the evidence before the magistrate judge that is relevant to the findings under
attack. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the magistrate judge,
the Report and Recommendation, Petitioner’s Objection, and his “motion for equitable tolling.”
The magistrate judge recommended denying Petitioner’s petition for failure to satisfy the applicable
statute of limitations. Petitioner objects that he did not receive notice of a state court’s denial of
his state motion for collateral relief in a timely fashion and he is entitled to equitable tolling.

Petitioner’s “motion for equitable tolling” presents new evidence not considered by the magistrate
judge, including an order dated November 4, 2013 by the state court withdrawing and amending the
original September 20, 2012 order denying Petitioner’s motion for collateral relief.

This

amendment may affect the timeliness of Petitioner’s federal habeas motion. The Court concludes
that it is preferable to decide the issue of equitable tolling on a complete record. The Court
therefore DECLINES TO ACCEPT the Report and Recommendation and REFERS the matter
to the magistrate judge for further consideration of the evidence presented in Petitioner’s Objection
and “motion for equitable tolling.”
IT IS SO ORDERED.

Dated:

February 27, 2014

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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