Opinion
CASE NO. 4:10-cv-00152-MP-CAS
03-27-2013
TOBIAS L ROLLE, Petitioner, v. EDWIN G BUSS, et al., Respondents.
ORDER
This cause comes on for consideration upon the Magistrate Judge's Report and Recommendation dated November 8, 2012. (Doc. 27). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Petitioner filed an objection at Doc. 29, and two motions to expand the record, Docs. 28 and 30. The motions at Doc. 28 and 30 are granted, and the Court has considered the exhibits referred to in those motions. I have made a de novo determination of petitioner's objection and have determined that the Report and Recommendation should be adopted.
The Court agrees with the Magistrate Judge that relying upon the advice of an individual that petitioner knew to be a disbarred former lawyer, even after suspecting that he had miscalculated the deadline, does not justify equitable tolling in this case. Further, the Court agrees that petitioner has not presented new reliable evidence that was not presented at trial, and which makes it more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt in light of the new evidence. Thus, petitioner's case does not trigger the "actual innocence" exception to the time limits for filing his federal habeas petition. Finally, in light of the above rulings, the motion to stay the federal case to allow exhaustion of state remedies is moot.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The magistrate judge's Report and Recommendation, Doc. 27, is adopted and incorporated by reference in this order.
2. The motion to dismiss at Doc. 17 is GRANTED and the petition dismissed as untimely.
3. The motion to stay, Doc. 23, is DENIED.
4. The motions to expand the record, Docs. 28 and 30, are GRANTED.
5. The Clerk is directed to close this file.
_____________
Maurice M. Paul, Senior District Judge