CHARLES J. MAYBERRY, also known as CHARLES J. HOMESLEY v. MICHAEL A. DITTMANN
No. 17-1631
United States Court of Appeals For the Seventh Circuit
September 14, 2018
Appeal from the United States District Court for the Western District of Wisconsin.
No. 16 CV 47 — Barbara B. Crabb, Judge.
ARGUED APRIL 5, 2018 — DECIDED SEPTEMBER 14, 2018
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
I.
On November 6, 2008, a jury in Dane County Circuit Court found Mayberry guilty of three counts of second-degree sexual assault and one count of false imprisonment. The court entered a judgment of conviction and sentenced Mayberry to twenty years’ imprisonment on March 16, 2009. He appealed his conviction, arguing that newly discovered evidence entitled him to a new trial. The Wisconsin Court of Appeals affirmed his conviction, and the Wisconsin Supreme Court denied his petition for review on December 5, 2011. Mayberry did not petition for certiorari in the United States Supreme Court, so his conviction became “final” for purposes of habeas review when the time for filing a certiorari petition expired 90 days later, on March 5, 2012. See Anderson v. Litscher, 281 F.3d 672, 674 (7th Cir. 2002);
Thus, beginning on March 6, 2012, Mayberry had one year to file his federal habeas petition. On August 2, 2012, Mayberry filed a motion for a new trial in state court, which stopped the habeas clock from running until it was denied on August 15, 2012. The clock resumed the following day and continued running until November 19, 2012, when Mayberry filed a petition for a writ of habeas corpus in federal district court, alleging ineffective assistance of counsel based on counsel‘s failure to investigate or raise the issue of Mayberry‘s competence to stand trial. Mayberry‘s petition stated that he had filed a “letter/motion” in the state circuit court for postconviction relief, but the circuit court‘s docket contained no record of such a filing. On January 7, 2013, the district court dismissed Mayberry‘s petition without prejudice for failure to exhaust his state-court remedies. The court‘s order explained that Mayberry needed to receive a decision from the state circuit court and then “seek review in the Wisconsin Court of Appeals and the Wisconsin Supreme Court” and invited Mayberry to “refile a timely petition after he has finished presenting his claims to the Wisconsin state courts.” Because
Mayberry‘s state court post-conviction motion, see
With the assistance of court-appointed counsel, Mayberry then filed his fully exhausted habeas petition in district court on January 20, 2016, approximately six months after his one-year limitations period expired (after accounting for time properly excluded under
The district court rejected Mayberry‘s tolling argument, concluding that Mayberry‘s “conclusory assertions” regarding his difficulties in filing a timely habeas petition were insufficient to support the extraordinary remedy of equitable tolling. The court also noted that its conclusion regarding Mayberry‘s failure to show that his mental limitations were so severe as to prevent him from understanding and pursuing his rights also suggested that he likewise would have been unable to prevail on the merits of his ineffective assistance of counsel claims. The district court issued a certificate of appealability, see
II.
With the assistance of court-appointed counsel on appeal, Mayberry renews his contention that he is entitled to equitable tolling. Alternatively, he argues that the district court should have held an evidentiary hearing to assess the mental competence issue. Tied to these issues, of course, is his underlying constitutional claim that his trial and appellate counsel were ineffective for failing to raise the issue of his competence to stand trial. Under AEDPA, a prisoner has one year from the date his conviction becomes “final” to file his federal habeas corpus petition.
Because the question of Mayberry‘s diligence must be evaluated in light of the broader picture of his mental limitations, we begin with the extraordinary circumstances prong of the tolling inquiry. This requirement is intended to apply to circumstances outside of the litigant‘s control. The Supreme Court reaffirmed in Menominee Indian Tribe that this element of the equitable tolling test “is met only where the circumstances that caused a litigant‘s delay are both extraordinary and beyond [his] control.” 136 S. Ct. at 756 (emphasis in original).
Mayberry identifies a number of different facts to support his claim that he suffers from mental limitations that prevented him from filing a timely habeas petition. First, Mayberry notes that he was in a serious car accident in the late 1980s that left him in a coma for some period of time. He also reported dropping out of school, where he had been enrolled in special education classes, when he was only fifteen. And he relies heavily on the 1999 psychological evaluation by Dr. Berney finding him incompetent to stand trial. In it, Dr. Berney concluded that Mayberry is functioning “in the mild range of mental retardation.” He also reported that on the Wechsler Adult Intelligence Scale III, Mayberry received Full Scale IQ of 64, which placed Mayberry in the intellectually impaired or mentally retarded range. Mayberry also included a Columbia Correctional Institution “inmate classification report” from 2014 with the following notation in the box labeled “Mental Health Class“: “MH-2a- Serious Mental Illness (Diagnostic).”
Although it is unlikely that any of these circumstances in isolation would justify equitable tolling, Mayberry insists that taken together they rise to the necessary level of “extraordinary.” We have recognized that mental illness may toll a statute of limitations, but “only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them.” See Obriecht, 727 F.3d at 750–51 (emphasis in original) (quoting Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)). And Mayberry is also correct that we must consider “the entire hand” he was dealt and consider all of the circumstances he faced “and the cumulative effect of those circumstances” to determine whether they were sufficiently extraordinary to prevent him from timely filing his petition. See Socha 763 F.3d at 686.
The problem with Mayberry‘s claim is that so little of his evidence of his mental disability sheds light on the relevant time period for purposes of tolling. That Mayberry was found incompetent to stand trial in 1999 does little to demonstrate that his mental challenges prevented him from understanding and acting on his legal rights between 2012 when his conviction became final and 2016 when he filed his
But he fails to point to anything specific transpiring between the filing of his unexhausted petition in 2012 and his eventual filing in January 2016 of his
Because we agree with the district court that Mayberry has failed to establish the requisite extraordinary circumstances, it is unnecessary to address his arguments regarding the first element — whether he diligently pursued his rights throughout the AEDPA period. Because the district court addressed this element, however, we too briefly consider it for completeness. Although the diligence required for equitable tolling is “reasonable diligence” not “maximum feasible diligence,” Holland, 560 U.S. at 653 internal quotations and citation omitted), mere conclusory allegations of diligence are insufficient and reasonable effort throughout the limitations period is required, Carpenter, 840 F.3d at 870.
In support of his claim of reasonable diligence, Mayberry points to those actions he did take toward filing his properly exhausted habeas petition, including fully appealing his underlying conviction, filing a motion for a new trial, filing his unexhausted petition in district court, and an October 4, 2013 letter seeking assistance from the state public defender‘s office. That letter, sent over six months after the March 2013 expiration of the statute of limitations, explains that he had recently lost the assistance of an inmate who had helped him file his state post-conviction petition in June 2013. It fails, however, to shed any light on why Mayberry was unable to promptly file his post-conviction petition in state court once the district court dismissed his unexhausted federal petition in January 2013. Given the lack of any specific evidence as to particular hurdles Mayberry encountered in timely pursuing his claim, it was not an abuse of the district court‘s discretion to conclude that Mayberry‘s evidence of reasonable diligence lacked the specificity necessary to entitle him to equitable tolling. Compare Socha, 763 F.3d at 687–88 (petitioner established that he diligently pursued rights during limitations period with evidence that he repeatedly wrote his attorney requesting access to his file, requested help from the public defender‘s office, used limited library time to work on his petition, and contacted the court before time expired to ask for an extension) with Carpenter, 840 F.3d at 871 (motions requesting a stay
Finally, we are also unpersuaded that the district court abused its discretion by failing to hold an evidentiary hearing into the issue of Mayberry‘s competence. See Boulb, 818 F.3d at 339 (decision whether or not to hold evidentiary hearing in habeas context is reviewed for abuse of discretion). The district court need not hold an evidentiary hearing for vague or conclusory allegations. Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001). Rather, a hearing is warranted when a petitioner alleges facts, which if proven, would entitle him to relief. Boulb, 818 F.3d at 339.
As discussed above, Mayberry provided little in the way of specific evidence as to his mental capacity both during the period he requested tolling or at the time of his trial in 2008. The evidence Mayberry did provide — the 1999 competency evaluation, the bare 2014 notation in his prison record that he has “a serious mental illness,” and generalized evidence of limited education and intellectual functioning — fails to demonstrate that he was incompetent to stand trial in 2008. There is thus little reason to believe Mayberry could succeed on the merits of his underlying claims of ineffective assistance of counsel. As such, it was not an abuse of the district court‘s discretion to decline to hold a hearing to evaluate Mayberry‘s competency as it relates to his equitable tolling claim. Carpenter, 840 F.3d at 871.
III.
For the foregoing reasons, we AFFIRM the district court‘s judgment dismissing Mayberry‘s petition for a writ of habeas corpus under