1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CAPRESE GARDNER,

Petitioner,

CASE NO. 2:08-CV-14523

v. HONORABLE ARTHUR J. TARNOW

UNITED STATES DISTRICT JUDGE 

KENNETH ROMANOWSKI,

Respondent.

__________________________________/

OPINION AND ORDER DENYING THE MOTION TO DISMISS AND COMPELLING

ANSWER ADDRESSING PETITION’S MERITS

This matter is before the Court on respondent’s motion to dismiss on the ground

that petitioner’s application for writ of habeas corpus is barred by the statute of

limitations found in 28 U.S.C. § 2244(d)(1). Petitioner has filed a reply to the motion to

dismiss, in which he claims that the statute of limitations should be equitably tolled

because his court appointed appellate lawyer waited almost three months to inform him

of the Michigan Supreme Court’s decision to deny his post-conviction application for

leave to appeal. Having reviewed the pleadings and the issues raised by petitioner in

his habeas application and in response to the motion to dismiss, the Court will deny the

motion to dismiss and will order that an answer addressing the merits of the petition be

filed in this matter within thirty days of the Court’s order. 

A habeas petitioner challenging the legality of his or her state custody is entitled

to a reasonably prompt disposition of his or her habeas petition. Ukawabutu v. Morton,

997 F. Supp. 605, 610 (D.N.J. 1998). Respondent in this case simply filed a motion to

dismiss without addressing the merits of petitioner’s claims. An answer to a habeas

petition is not like an answer to a civil complaint. It should respond to the allegations of

the habeas petition. Id. at 608-09; See also See Chavez v. Morgan, 932 F. Supp. 1152,

2:08-cv-14523-AJT-SDP Doc # 12 Filed 05/27/09 Pg 1 of 4 Pg ID 2026
Gardner v. Romanowski, 08-14523 

2

1153 (E.D. Wis. 1996)(a motion to dismiss is generally not the appropriate pleading in

response to a petition for writ of habeas corpus; an appropriate response is an answer

which responds to each allegation contained in a habeas petition). Therefore, unless a

federal court grants a respondent leave to file a motion for summary judgment or a

motion to dismiss, an answer to a habeas petition should respond in an appropriate

manner to the factual allegations contained in the petition and should set forth legal

arguments in support of respondent’s position, both the reasons why the petition should

be dismissed and the reasons why the petition should be denied on the merits.

Ukawabutu, 997 F. Supp. at 609. The practice of filing these “piecemeal” motions is

inconsistent with the Rules Governing Section 2254 Cases in the United States District

Courts, with 28 U.S.C. § 2254(b)(2), which gives district courts the discretion to consider

and deny unexhausted claims on their merits, and with fundamental principles of

efficient case management. Id. at 607. 

Petitioner contends that the limitations period should be equitably tolled because

he was not informed in a timely fashion by his appellate attorney that the Michigan

Supreme Court had denied his post-conviction appeal. 

Although the Supreme Court has not yet decided whether equitable tolling of the

AEDPA’s one-year limitations period applies to otherwise untimely claims, Lawrence v.

Florida, 127 S. Ct. 1079, 1085 (2007), the Sixth Circuit has held that equitable tolling of

the one-year limitations period may be appropriate in certain extraordinary

circumstances. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). To be entitled to

equitable tolling, a petitioner must show “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way and prevented

timely filing.” Lawrence, 127 S. Ct. at 1085. 

2:08-cv-14523-AJT-SDP Doc # 12 Filed 05/27/09 Pg 2 of 4 Pg ID 2027
Gardner v. Romanowski, 08-14523 

3

When a petitioner, through no fault of his own, first learns of the outcome of a

final appeal after the time for seeking habeas has expired, equitable tolling is

appropriate. Erwin v. Elo, 130 F. Supp. 2d 887, 890 (E.D. Mich. 2001). In the present

case, petitioner raises a genuine issue of material fact as to whether the one year

limitations period should be equitably tolled in this case. 

In addition, although the issue of whether a claim is procedurally barred should

ordinarily be resolved first, “judicial economy sometimes dictates reaching the merits [of

a claim or claims] if the merits are easily resolvable against a petitioner while the

procedural bar issues are complicated.” Barrett v. Acevedo, 169 F. 3d 1155, 1162 (8th

Cir. 1999)(internal citations omitted). Because of the complexities involved in this case,

it appears to be simply easier and more judicially efficient to adjudicate petitioner’s

claims on the merits “than to untangle the complexities of the timeliness issue.” See

Jones v. Bowersox, 28 Fed. Appx. 610, 611 (8th Cir. 2002). Accordingly, the Court

believes that the ends of justice would be better served by ordering an answer that

addresses the merits of petitioner’s claims. 

The Court will deny the motion to dismiss and order the respondent to file an

answer that responds to the merits of petitioner’s habeas claims within thirty days of the

Court’s order. See Erwin, 130 F. Supp. 2d at 890-91; 28 U.S.C. § 2243. 

2:08-cv-14523-AJT-SDP Doc # 12 Filed 05/27/09 Pg 3 of 4 Pg ID 2028
Gardner v. Romanowski, 08-14523 

4

ORDER

Accordingly, the Court ORDERS that the motion to dismiss [Dkt. # 9] is DENIED.

The Court further ORDERS Respondent to submit an answer addressing the

merits of Petitioner’s habeas claims within THIRTY DAYS of the date of this order.

S/Arthur J. Tarnow 

Arthur J. Tarnow

United States District Judge

Dated: May 27, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of

record on May 27, 2009, by electronic and/or ordinary mail.

S/Catherine A. Pickles 

Judicial Secretary

2:08-cv-14523-AJT-SDP Doc # 12 Filed 05/27/09 Pg 4 of 4 Pg ID 2029