Opinion
CASE NO. 1:11-cv-00158-MP-GRJ
03-28-2013
ANTHONY YAWN, Petitioner, v. SECRETARY OF DEPARTMENT OF CORRECTIONS, Respondent.
ORDER
This cause comes on for consideration upon the Magistrate Judge's Report and Recommendation dated March 13, 2013. (Doc. 29). 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). The respondent filed objections, Doc. 5, and the Court has made a de novo determination of those portions of the Report and Recommendation to which objection was made. 28 U.S.C. § 636(b)(1)(C). Having considered the Report and Recommendation, and any objections thereto timely filed, I have determined that the Report and Recommendation should be adopted.
The Court agrees with the Magistrate Judge that under the unique circumstances of this case, equitable tolling is appropriate as petitioner's disabling injury made it virtually impossible to write anything of the length and complexity of a 20-claim habeas petition. The Court rejects respondent's argument that because petitioner could file 17 pages of grievances regarding his medical condition, he could have filed his habeas petition during that time. Writing or getting another to write a short grievance once per day every few days is very different from writing or convincing someone to write for you a 20-claim habeas petition.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Magistrate Judge's Report and Recommendation, Doc. 29, is adopted and incorporated by reference in this order.
2. The motion to dismiss as untimely, Doc. 8, is denied.
3. This matter is referred back to the Magistrate Judge for further proceedings, including Doc. 28, Motion for Leave to File and Amended Petition.
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Maurice M. Paul, Senior District Judge