950 F.3d 410
7th Cir.2020Background
- DeWayne Perry, serving a long sentence for murder, suffered a 2009 stroke causing aphasia that impairs his ability to speak, write, and understand words; the severity during 2016–2017 is disputed and not established in the record.
- Perry pursued state collateral relief; his appointed lawyer abandoned him, he dismissed the state application (saying without prejudice), then refiled five months later; the state court treated the first dismissal as with prejudice and dismissed the refiling as improperly successive.
- A §2254 federal petition was later filed but held time-barred because the second state filing was not a "properly filed" application under 28 U.S.C. §2244(d)(2); Perry conceded untimeliness and sought equitable tolling.
- The district court denied equitable tolling reasoning aphasia is an internal limitation and thus cannot be the kind of "external obstacle" permitting tolling; Indiana did not defend that categorical rule on appeal.
- The Seventh Circuit explained mental impairments (including aphasia) can, in principle, support equitable tolling, but the record lacks medical evidence about Perry’s cognitive/verbal abilities during the critical period and so remanded for factfinding.
- The panel also recognized that Perry’s procedural default of an ineffective-assistance claim might be excused under Martinez/Trevino because Indiana channels such claims to collateral review and Perry received ineffective (or no) assistance there; the court vacated and remanded and directed appointment of counsel for further development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether aphasia can be an "extraordinary" circumstance warranting equitable tolling of §2244(d)(1) | Perry: Severe aphasia from stroke prevented him from timely pursuing federal relief and understanding state proceedings, supporting tolling | Indiana: Mental impairment is an internal limitation and cannot qualify as the external obstacle required for tolling | Court: Mental impairments can in principle be extraordinary; district court erred to reject aphasia categorically |
| Whether Perry is entitled to equitable tolling on this record | Perry: Demonstrated diligence and that aphasia blocked timely filing | Indiana: Record shows Perry filed articulate pleadings, so no showing of disabling aphasia; tolling not warranted | Court: Record lacks medical evidence about Perry’s abilities during the relevant period; factual development required and remand necessary |
| Whether the district court properly treated the second state filing as "not properly filed" for purposes of §2244(d)(2) | Perry: He believed dismissal was without prejudice and refiling should have been considered properly filed | Indiana: Indiana law requires permission for successive filings; Perry did not obtain it, so the filing was improper | Court: District court correctly treated time as counted against Perry but equitable tolling remains possible; remand required to evaluate tolling claim |
| Whether Perry’s procedural default of his ineffective-assistance claim bars federal review | Perry: Martinez/Trevino and state-provided ineffective state collateral counsel excuse default because he had no meaningful collateral counsel | Indiana: Perry defaulted by failing to present claim in state court, so federal review is barred | Court: Martinez applies to Indiana; record suggests Perry received ineffective (or no) collateral counsel; procedural default may be excused and further factfinding is needed |
Key Cases Cited
- Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling available for extraordinary circumstances beyond petitioner’s control coupled with diligence)
- Conroy v. Thompson, 929 F.3d 818 (7th Cir. 2019) (equitable tolling standard and diligence requirement)
- Lombardo v. United States, 860 F.3d 547 (7th Cir. 2017) (discussion of "external obstacle" formulation)
- Mayberry v. DiEmann, 904 F.3d 525 (7th Cir. 2018) (mental limitations can support equitable tolling)
- Schmid v. McCauley, 825 F.3d 348 (7th Cir. 2016) (appointment of counsel when mental impairment impedes habeas prosecution)
- Davis v. Humphreys, 747 F.3d 497 (7th Cir. 2014) (mental impairment may justify tolling under appropriate facts)
- Jones v. Zatecky, 917 F.3d 578 (7th Cir. 2019) (ineffective assistance where counsel allowed prejudicial procedural extensions)
- Martinez v. Ryan, 566 U.S. 1 (2012) (narrow exception allowing federal review when ineffective assistance of post-conviction counsel caused default)
- Trevino v. Thaler, 569 U.S. 413 (2013) (extension of Martinez where state’s procedures effectively limit initial review to collateral proceedings)
- Brown v. Brown, 847 F.3d 502 (7th Cir. 2017) (Indiana qualifies as a state to which Martinez/Trevino principles apply)