Opinion
CASE NO. C16-5925 BHS
10-19-2017
JOEL PAUL REESMAN, Petitioner, v. RON HAYNES, Respondent.
ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION AND REMANDING
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Theresa L. Fricke, United States Magistrate Judge (Dkt. 23), and Petitioner Joel Paul Ressman's ("Reesman") objections to the R&R (Dkt. 24).
On August 31, 2017, Judge Fricke issued the R&R recommending that the Court dismiss the petition as time-barred. Dkt. 23. On September 11, 2017, Reesman filed objections asserting numerous arguments, including that he is actually innocent. Dkt. 24 at 1-2.
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).
In this case, Reesman's actual innocence claim has not been fully briefed or considered. Although the Government identified the claim in its motion to dismiss, it did not address the actual innocence exception to the statute of limitations. See Dkt. 15. Reesman raised the argument in his response, Dkt. 22 at 4-7, and the Government did not file a reply. Thus, Reesman has raised an exception to a time-barred petition, which has not been responded to or otherwise considered. Therefore, the Court DECLINES to adopt the R&R and REMANDS for further consideration.
IT IS SO ORDERED.
Dated this 19th day of October, 2017.
/s/_________
BENJAMIN H. SETTLE
United States District Judge