Price v. Mahoney et al

Filing 32

ORDER denying 18 Motion to Dismiss. Signed by Magistrate Carolyn S Ostby on 10/22/2012. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
______________________________
JOHN RONALD PRICE,

)
Cause No. CV 10-126-BLG-CSO
)
Petitioner,
)
)
vs.
)
ORDER DENYING STATE’S
)
MOTION TO DISMISS
LEROY KIRKEGARD;
)
ATTORNEY GENERAL OF
)
THE STATE OF MONTANA,
)
)
Respondent.
)
______________________________
This case originally came before the Court on referral pursuant to 28 U.S.C. §
636(b)(1) and D. Mont. L.R. 72.2(a)(1). On April 4, 2012, Respondent (“the State”)
moved to dismiss the petition on the grounds that it is time-barred. On September 6,
2012, the Court issued Findings and Recommendation concluding that the motion
should be denied and an evidentiary hearing set to determine whether the petition is
time-barred. The State filed an objection on September 20, 2012.
Thereafter, Petitioner Price was appointed counsel, an evidentiary hearing was

ORDER DENYING MOTION TO DISMISS / PAGE 1

set, and the parties consented in writing to magistrate judge jurisdiction. See Consents
(doc. 30).
The State’s objection continues to assert that this Court should determine
whether Price’s allegations are sufficient to defeat the time bar. If it were possible to
determine the issue on the face of the pleadings, the Court of Appeals would have
done so. A hearing is required.

Based on the foregoing, the Court enters the following:
ORDER
The State’s motion to dismiss (doc. 18) is DENIED.
DATED this 22nd day of October, 2012.

/s/ Carolyn S. Ostby
Carolyn S. Ostby
United States Magistrate Judge

ORDER DENYING MOTION TO DISMISS / PAGE 2