Supreme Court of the United States

No. ______

In The

______

October Term, 2018

CHARLES J. MAYBERRY,

Petitioner,

vs.

MICHAEL A. DITTMAN,

Respondent.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit ______

PETITION FOR A WRIT OF CERTIORARI ______

Robert J. Palmer Counsel of Record [email protected] MAY • OBERFELL • LORBER 4100 Edison Lakes Parkway, Suite 100 Mishawaka, IN 46545 [email protected] Phone: (574) 243-4100 Fax: (574) 232-9789

and

University of Notre Dame School of Law Notre Dame, IN 46556

Attorney for Petitioner

QUESTION PRESENTED

Whether the opinion of the Seventh Circuit Court of Appeals contravenes this Court’s precedent in Holland v. Florida, 560 U.S. 631 (2010), by ruling that Mayberry was not only not entitled to equitable tolling of the statute of limitations for filing a motion pursuant to 28 U.S.C. 2254 but was not even entitled to an evidentiary hearing to establish that his mental incompetency justified equitable tolling.

PARTIES TO THE PROCEEDING

All parties to the proceeding are named in the caption.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...... i

PARTIES TO THE PROCEEDING ...... ii

TABLE OF CONTENTS ...... iii

TABLE OF CITED AUTHORITIES ...... v

OPINIONS BELOW ...... 1

STATEMENT OF JURISDICTION...... 1

CONSTITUTIONAL PROVISION INVOLVED ...... 1

STATEMENT OF THE CASE ...... 1

A. Proceedings Below ...... 1

B. Factual Background...... 3

REASONS FOR GRANTING THE WRIT ...... 6

THE PETITION SHOULD BE GRANTED BECAUSE THE OPINION BELOW, WHICH AFFIRMED THE DISTRICT COURT’S REJECTION OF EQUITABLE TOLLING, OR EVEN THE OPPORTUNITY FOR AN EVIDENTIARY HEARING, CONTRAVES THIS COURT’S PRECEDENT IN HOLLAND V. FLORIDA...... 6

I. The District Court Erred In Not Applying The Doctrine Of Equitable Tolling To Mayberry’s Untimely Petition; Mayberry Is Both Illiterate And Mentally Incompetent ...... 8

a. Mayberry diligently pursued his rights by continuously trying to gain relief in both the state and federal court systems ...... 9

b. Mayberry’s documented mental incompetence and illiteracy were extraordinary circumstances that stood in the way of Mayberry timely filing his petition ...... 11

II. In The Alternative, The Seventh Circuit Erred In Not Remanding For An Evidentiary Hearing To Establish Mayberry’s Mental Incompetency Was In Fact An Extraordinary Circumstance That Prevented The Timely Filing Of His Habeas Petition ...... 12

CONCLUSION ...... 15 iv

APPENDIX

Appendix A – Opinion of the United States Court of Appeals for the Seventh Circuit Filed on September 14, 2018 ...... 1

Appendix B – Judgment of the United States Court of Appeals for the Seventh Circuit Filed on September 14, 2018 ...... 12

TABLE OF CITED AUTHORITIES

Page

Cases

Bills v. Clarks, 628 F.3d 1092 (2010) ...... 9

Boulb v. United States, 818 F. 3d 334 (7th Cir. 2016) ...... 8, 13

Bruce v. United States, 256 F. 3d 592 (7th Cir. 2001) ...... 13

Carpenter v. Davis, 840 F. 3d 867 (7th Cir. 2016) ...... 9

Davis v. Humphreys, 747 F.3d 497 (7th Cir. 2014) ...... 7

Duncan v. Walker, 533 U.S. 167 (2001) ...... 8

Estremera v. United States, 724 F. 3d 773 (7th Cir. 2013) ...... 13

Holland v. Florida, 560 U.S. 631 (2010) ...... 1, 6, 7, 8, 9, 10, 11, 12

Mayberry v. Dittman, 904 F.3d 525 (7th Cir. 2018) ...... 1, 11

Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750 (2016) ...... 8

Moore v. Battaglia, 476 F.3d 504 (7th Cir. 2007) ...... 13

Moore v. Knight, 368 F.3d 936 (7th Cir. 2004) ...... 10

Ryan v. United States, 657 F.3d 604 (7th Cir. 2011) ...... 10

Sandoval v. United States, 574 F. 3d 847 (7th Cir. 2009) ...... 13 vi

Schmid v. McCauley, 825 F. 3d 348 (7th Cir. 2016) ...... 12

Socha v. Boughton, 783 F.3d 674 (7th Cir. 2014) ...... 9

Statutes

28 U.S.C. § 1254(1) ...... 1

28 U.S.C. § 2244(d) ...... 6

28 U.S.C. § 2244(d)(1)(A) ...... 8

28 U.S.C. § 2244(d)(2) ...... 8

Constitutional Provisions

U.S. Const. amend. V...... 1

Petitioner, Charles J. Mayberry, respectfully requests that a Writ of Certiorari be issued to

review the judgment of the United States Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Seventh Circuit is reported at

Mayberry v. Dittman, 904 F.3d 525 (7th Cir. 2018) (App. A). Judgment was entered on

September 14, 2018. (App. B.)

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the Seventh Circuit (“Court of

Appeals”) was entered on September 14, 2018. No petitions for rehearing were filed.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution provides in relevant part: “No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .”

STATEMENT OF THE CASE

The fundamental question in this case is whether the Seventh Circuit Court of Appeals violated Mayberry’s Fifth Amendment right to due process by failing to either grant equitable tolling, or grant an evidentiary hearing on Mayberry’s competency to support equitable tolling,

as required by this Court’s precedent in Holland v. Florida, 560 U.S. 631 (2010).

A. Proceedings Below.

On November 19, 2012, Mayberry filed his first habeas petition in federal court. On

November 9, 2012, Mayberry sent a letter to the Wisconsin state court requesting relief for

ineffective assistance of counsel in his initial trial. On January 7, 2013, the district court

dismissed Mayberry’s initial habeas petition without prejudice for failure to exhaust his claims in 2 state court.

On June 26, 2013, Mayberry filed his post-conviction motion in the Circuit Court for

Dane County Wisconsin. The state court held a hearing on September 9, 2013 and denied the motion.

On October 4, 2013, Mayberry, with the help of inmate Jeremy T. Greene, again wrote to the Wisconsin Public Defender’s office to request assistance. He explained in the past he had been appointed a protective placement guardian, had been committed to a mental health institution, and has a well-documented history of education and cognitive disabilities. Mayberry cited three cases in which he had been found incompetent to stand trial. Mayberry’s state motion for post-conviction relief was denied on November 1, 2013.

Mayberry appealed to the Wisconsin Court of Appeals, but the Court of Appeals affirmed the trial court’s dismissal on February 12, 2015. On November 4, 2015, the Wisconsin Supreme

Court denied review.

On January 20, 2016, Mayberry filed his properly exhausted habeas corpus petition in federal court. In the petition, he alleges he “lacks a serious understanding of the judicial process procedural actualities being waged against him, nor does he have the mental comprehension of the criminal system necessary to be more than a bystander in his own case situation.” However,

Mayberry’s one-year limitations period expired on March 20, 2013. The one-year limitations period was tolled while Mayberry’s claims were heard in state court, however his exhausted petition was still filed roughly six months late.

On April 14, 2016, the State filed a motion to dismiss. The State asserted that Mayberry’s

“pro se status and lack of legal knowledge are not, without more, ‘extraordinary circumstances’ that would excuse his untimely filing.” On May 16, 2016, Mayberry filed a response to the 3 motion to dismiss. A fellow inmate asserted that he was being denied access to Mayberry’s legal records and requested an evidentiary hearing on his access to the documents. On June 14, 2016, the district court concluded “it would be in the interests of justice to seek counsel to represent petitioner.” The court appointed counsel filed a brief in response to the state’s motion to dismiss.

The district court therefore found Mayberry’s request for an evidentiary hearing on the fellow inmate’s harassment moot.

On February 24, 2017, the district court granted the state’s motion to dismiss and denied

Mayberry’s petition as untimely filed. The district court declined to apply equitable tolling. The judge noted, “[i]t is difficult to argue with the petitioner’s contention that, given the combination of his documented mental limitations and his inability to read and write, researching and drafting a habeas petition on his own would be a very difficult task.” However, the district court found

“the obstacles asserted by the petitioner — his limited mental abilities and limited help from jailhouse lawyers — did not prevent him from filing legal documents, including a federal habeas petition.”

Mayberry filed a timely Notice of Appeal on March 24, 2017. The Seventh Circuit Court of Appeals affirmed on September 14, 2018.

B. Factual Background.

In the late 1980s, Mayberry was involved in a car accident that left him in a coma for some time. Following the car accident, he was hospitalized for 3–4 months. His mother noted significant changes in his mental status — specifically his memory, cognitive ability, and emotional intelligence — after the car accident.

In 1999, licensed psychologist Dr. Kent Berney met with Mayberry to determine if he was eligible to stand trial. Dr. Berney administered several different intelligence tests. Mayberry 4

consistently tested in the mental illness or mentally impaired range on these tests. Ultimately, Dr.

Berney determined Mayberry was incompetent to stand trial.

Mayberry told Dr. Berney on one occasion he was the father of two children. On another

occasion, he told Dr. Berney he was the father of five children. Mayberry was in special

education programs throughout his education. He dropped out of school at the age of 15, at

which point he was in 7th or 8th grade. Mayberry told Dr. Berney he was unable to read or write.

Dr. Berney reported that on the Wechsler Adult Intelligence Scale III, a Full-Scale IQ is

100, a score between 85 and 70 is borderline, and any score below a 70 is considered “the intellectually impaired or mentally retarded range.” Mayberry generated a verbal IQ of 70, a performance IQ of 63, and a Full-Scale IQ of 64. In the supplemental scales to this IQ test,

graded on the same scale, Mayberry generated a verbal comprehension score of 72, a perceptual

organization score of 65, a working memory score of 71, and a processing speed of 63.

Mayberry’s processing speed of 63 and perceptual organization score of 65 “suggest relatively

significant deficits in the area of processing and incorporating information.”

Dr. Berney reported that on the Wechsler Memory Scale-Revised test, there is an average

score of 100. Scores between 85-115 are considered normal, scores between 70-85 are

considered borderline, and scores below 70 are considered impaired. Mayberry had a verbal

memory score of 64, a visual memory score of 74, a general memory score of 59, an attention

and concentration score of 63, and a delayed recall of 55. Three of his four scores fell below the

impaired threshold. Dr. Berney noted in his report “[a]ll of Mr. Homelsey’s [Mayberry’s]

memory functions are rather significantly impaired.”

Dr. Berney reported that on the Bender Visual Motor Gestalt Test, individuals are asked

to copy 9 geometric figures. Immediately after copying the figures, Mayberry was asked to draw 5 as many as possible from his recall. On average, individuals with brain damage recall 3.6 designs. Individuals with seizure disorders or psychiatric patients recall an average of 5.5 designs. Mayberry recalled in total four of the designs, drawing one of the designs three times.

Dr. Berney noted that “perseveration is often an anomaly seen in neurologically impaired individuals.” Dr. Berney noted Mayberry’s perseveration in other tests as well.

Dr. Berney also administered the Georgia Competency to Stand Trial Screening. The test had a total score of 100, and anyone who scores below a 70 is considered compromised relative to their ability to stand trial. Mayberry generated a 56, which put him in the range of compromised relative to his ability to stand trial.

Dr. Berney concluded that Mayberry was a man functioning “in the mild range of mental retardation.” “From the information received from his mother, his compromise is primarily related to a closed head injury received approximately ten years ago.” “There is no indication that these deficits are acute or subject to change over time.” Dr. Berney then noted, “I do not believe that Mr. Homelsey [Mayberry] has the requisite cognitive ability to adequately learn, understand, incorporate, and make functional the information necessary to regain competency.”

In an evaluation administered for the same trial, another doctor found Mayberry competent to stand trial. However, Wisconsin Judge O’Brien decided “Dr. Berney learned so much more about Mr. Homelsey [Mayberry] through the use of the testing, I find his opinion to be more reliable.” On September 2, 1999, Judge O’Brien found Mayberry incompetent to stand trial and suspended the case for this reason. Over a year later, Judge O’Brien lifted the suspension and found Mayberry competent to stand trial.

Mayberry demonstrated his own incompetence during his state post-conviction hearings.

In a September 9, 2013 motion hearing in the state trial court, Mayberry testified “No. I don’t 6 understand things. I need somebody to help me with things . . . I don’t understand that stuff.”

The prosecutor told the judge, “[a]s far as I’m concerned, at that point you can just deny the motion ‘cause he doesn’t even know why he’s here.” “I don’t know what he thinks we’re here for. But I can tell you is right now I don’t have time to waste on garbage.”

Mayberry consistently informed the judge that he did not understand what was going on.

The judge then commented “I will say that I question whether Mr. Homelsey [Mayberry] is pretending to not know what this is in hopes that that will advance his case. I’m not – I don’t know for certain, but I have a – it seems very well that that may be the case.” The judge then denied Mr. Homelsey’s [Mayberry’s] motion for reconsideration. Mayberry had incorrectly expected either appointed counsel or a guardian to be present at the hearing, as he “had always had counsel at any other court hearing.”

Mayberry had been found incompetent to stand trial on three separate occasions. A prison classification record from March 30, 2015 classifies him in the “Serious Mental Illness” mental health class. The classification record also mentions school as a high priority for him.

REASONS FOR GRANTING THE WRIT

THE PETITION SHOULD BE GRANTED BECAUSE THE OPINION BELOW, WHICH AFFIRMED THE DISTRICT COURT’S REJECTION OF EQUITABLE TOLLING, OR EVEN THE OPPORTUNITY FOR AN EVIDENTIARY HEARING, CONTRAVENES THIS COURT’S PRECEDENT IN HOLLAND V. FLORIDA.

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year statute of limitations on the filing of habeas petitions in federal court. 28 U.S.C. § 2244(d).

However, petitioners are entitled to equitable tolling if they can show that despite their diligence, extraordinary circumstances stood in the way of timely filing their petitions. Holland v. Florida, 7

560 U.S. 631, 645-646 (2010). The petitioner must show he used only reasonable diligence, not

maximum feasible diligence, to pursue his rights. Holland, 560 U.S. at 653.

Mayberry is unable to read or write. Despite this, Mayberry diligently pursued his rights

by appealing his initial conviction, filing a motion for a new trial, writing a letter to the

Wisconsin state court requesting habeas corpus relief, and filing a federal habeas petition to

vindicate his constitutional rights. When the habeas petition was dismissed for lack of

exhaustion, Mayberry filed a petition in state court and upon exhaustion, filed this petition with

the district court.

Mental incompetence and mental illness can qualify as extraordinary circumstances if the

petitioner shows that the mental incompetence stood in the way of timely filing. Davis v.

Humphreys, 747 F.3d 497, 498-500 (7th Cir. 2014). Extraordinary circumstances stood in

Mayberry’s way, as he is both mentally incompetent and illiterate. Mayberry had neither counsel nor legal guardian when he attempted to file his state post-conviction remedy claims and his

federal habeas corpus petitions. He has been found incompetent to stand trial three separate times

in Wisconsin state courts. A licensed psychologist who examined Mayberry found him to be

incompetent on several different scales. Because of Mayberry’s inability to read and write, he

was completely dependent on other inmates for assistance throughout this process. Mayberry’s

mental incompetency constituted an extraordinary circumstance that prevented him from timely

filing his habeas petition.

Because of his diligence in pursuing relief and assistance in the process; as well as his

well-documented mental incompetency, Mayberry is entitled to the application of equitable

tolling. 8

In the alternative, Mayberry is entitled to an evidentiary hearing on his mental

competence, so the district court can better assess if equitable tolling should apply. Unlike the

petitioner in Boulb v. United States, 818 F. 3d 334, 340 (7th Cir. 2016), Mayberry’s statements

alleging his mental incompetency are not conclusory. 818 F. 3d 334, 340 (7th Cir. 2016).

Mayberry included a medical evaluation describing various failing scores on competency tests

and a prison transcript that denotes his status as a prisoner with “serious mental illness.”

Mayberry is, at a minimum, entitled to an evidentiary hearing to establish his mental

incompetence, thus showing he is entitled to the application of equitable tolling.

I. The District Court Erred In Not Applying The Doctrine Of Equitable Tolling To Mayberry’s Untimely Petition; Mayberry Is Both Illiterate And Mentally Incompetent.

AEDPA imposes a one-year statute-of-limitations period that generally begins running from “the date on which the judgment became final by the conclusion of the direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The limitations

period is statutorily tolled when the state court is considering “a properly filed application for

State post-conviction or other collateral review. 28 U.S.C. § 2244(d)(2). Unexhausted petitions

or otherwise deficient petitions improperly filed in federal court do not toll the one-year

limitations period. Duncan v. Walker, 533 U.S. 167, 172 (2001).

This Court recognizes that AEDPA’s one-year limitations period may be equitably tolled.

Holland v. Florida, 560 U.S. at 649. To qualify for equitable tolling, the petitioner must both

show: (1) he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. at 649.

“The diligence prong . . . covers those affairs within the litigant’s control; the extraordinary-

circumstances prong, by contrast, is meant to cover matters outside [his] control.” Menominee 9

Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750, 756 (2016). Equitable tolling is not a

“chimera—something that exists in name only.” Socha v. Boughton, 783 F.3d 674, 684 (7th Cir.

2014). Courts are not free “to regard equitable tolling as something that exists in name only; this

would render the Supreme Court’s explicit approval of equitable tolling in Holland a nullity.” Id.

Unlike the Seventh Circuit which has yet to articulate specific standard for determining incompetency, the Ninth Circuit has established the following standard for determining whether mental incompetence supports equitable tolling.

(1) First, a petitioner must show his mental impairment was an “extraordinary circumstance beyond his control, by demonstrating the impairment was so severe that either: (a) petitioner was unable rationally or factually to personally understand the need to timely file, or (b) petitioner’s mental state rendered him unable personally to prepare a habeas petition to effectuate its filing. (2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance.

Bills v. Clarks, 628 F.3d 1092, 1099-1100 (2010). This Court should adopt this standard as applicable in all federal courts.

a. Mayberry diligently pursued his rights by continuously trying to gain relief in both the state and federal court systems.

“The diligence required for equitable tolling purposes is reasonable diligence… not

maximum feasible diligence.” Holland v. Florida, 560 U.S. at 653 (internal citations omitted).

The petitioner must “demonstrate that he was reasonably diligent in pursuing his rights

throughout the limitations period and until he finally filed his untimely habeas petition.”

Carpenter v. Douma, 840 F. 3d 867, 870 (7th Cir. 2016).

To prove his diligence, Mayberry must show he reasonably pursued his rights throughout

the one-year limitations period and until he filed his untimely, exhausted habeas petition. 10

Mayberry established his diligence by fully appealing his conviction, filing a motion for a new

trial, filing an unexhausted federal habeas petition, exhausting his remedies in state court,

requesting help from the Wisconsin Public Defender’s office, and then filing an exhausted

habeas petition with the federal court. When dismissing Mayberry’s initial petition, the district

court wrote “petitioner cannot bring a claim for ineffective assistance in this court because he has

not finished presenting it to the state courts.” Mayberry heeded the judge’s instructions and filed

his post-conviction claim in state court to begin the process of exhaustion. Mayberry pursued his

claim with reasonable diligence, thus satisfying the first prong of the test set out in Holland.

This Court’s analysis in Holland is not analogous to Mayberry’s exercise of diligence, as

Mayberry had no attorney to contact for assistance. In Holland, this Court found the petitioner

had shown diligence by writing “his attorney numerous letters seeking crucial information and

providing direction; he also repeatedly contacted the state courts, their clerks, and the Florida

State Bar Association in an effort to have Collins [attorney]—the central impediment to the

pursuit of his legal remedy—removed from his case.” 560 U.S. at 653. Mayberry had no attorney to contact about how to exhaust his claims or to ask for assistance. Instead, Mayberry was dependent on the help of other inmates to draft and file his legal documents. Mayberry should not be penalized merely because he was a pro se petitioner and unable to read and write legal documents on his own. Mayberry is required to show only that he used “reasonable diligence,” not “maximum feasible diligence.” 540 U.S. at 653. Mayberry showed reasonable diligence for a mentally incompetent man by consistently attempting to vindicate his constitutional rights in both the state and federal court systems, even though he was without the assistance of an attorney. 11

Mayberry was also diligent considering his physical confinement. Moore v. Knight, 368

F.3d 936 (7th Cir. 2004); see also Ryan v. United States, 657 F.3d 604 (7th Cir. 2011) (internal

citations omitted) (“Courts may consider the effect of prison life on one’s ability to communicate

with counsel and the court when determining the level of diligence exercised by a prisoner.”).

Mayberry was confined in the psychiatric ward of the prison, making it difficult for him to

connect with other prisoners who were either willing or able to assist him in drafting his legal

documents. In light of where he was housed, Mayberry showed reasonable diligence by

consistently using the library and searching for another assistant to help him in drafting his legal

documents.

b. Mayberry’s documented mental incompetence and illiteracy were extraordinary circumstances that stood in the way of Mayberry timely filing his petition.

Mental incompetence can qualify as an extraordinary circumstance justifying equitable tolling. Holland. While this Court has declined to find mental incompetence per se entitles a petitioner to the application of equitable tolling, Mayberry has alleged enough to show that his mental incompetency is an extraordinary circumstance that prevented the timely filing. Mayberry has been found incompetent to stand trial on three separate occasions. A 1999 psychological evaluation explained that Mayberry failed most competency tests administered. It is unlikely that

Mayberry would have been found competent to stand trial in his underlying state conviction, but for his trial and appellate attorneys’ objectively unreasonable behavior. The state of Wisconsin asserted in its motion to dismiss Mayberry’s habeas petition, “[t]he obstacles asserted by petitioner… did not prevent him from filing legal documents, including a federal habeas petition.” Instead, the obstacles Mayberry asserted made it nearly impossible for him to file these documents in a timely fashion. 12

Neither the district court nor the Seventh Circuit looked at the entire hand Mayberry was

dealt as the Seventh Circuit acknowledge was necessary. Mayberry v. Dittman, 904 F.3d 525,

530 (7th Cir. 2018). While viewed in isolation, the obstacles Mayberry faced may not be sufficient to demonstrate extraordinary circumstances. But taken together, these circumstances were extraordinary. Dr. Berney evaluated Mayberry’s competence ten years after he was

involved in a car accident that left him hospitalized for roughly three months. Dr. Berney still

found, ten years after the accident, “no indication that these deficits are acute or subject to

change over time.” Mayberry was found incompetent to stand trial in the Wisconsin state court

system on three separate occasions. A 2015 report from the prison denotes he is considered

“mentally ill.” Mayberry is housed in the mental health unit of the prison. Mayberry dropped out

of his school before the age of 14. While in school, he was enrolled in special education.

Mayberry was unable to draft or file any of his pro se legal documents himself, he depended on

jailhouse lawyers not only for the knowledge of the law, but for their ability to read and write.

Accessing competent prisoners to assist him was nearly impossible, as he was housed in the

psychiatric ward of his prison. Taken in its entirety, Mayberry’s mental incompetency and

illiteracy constituted extraordinary circumstances that prevented the timely filing of his federal

habeas petition.

Mayberry is entitled to equitable tolling under Holland. He showed reasonable diligence

by consistently seeking assistance to file his claims in state and federal courts. He faced

extraordinary circumstances in timely filing his federal habeas petition, as he provided evidence

that shows he is mentally incompetent and illiterate.

The Seventh Circuit has remanded cases with limited factual records to the district court for evidentiary hearings to better determine if the petitioner was entitled to equitable tolling. See

Schmid v. McCauley, 825 F. 3d 348, 350 (7th Cir. 2016) (remanding the case to the district court

for appointment of counsel to better brief petitioner’s mental incompetence and, if appropriate,

to hold an evidentiary hearing); Estremera v. United States, 724 F. 3d 773 (7th Cir. 2013)

(finding “[i]t would take an evidentiary hearing. . . to learn whether Estremera had been pursuing his rights diligently and whether whatever counsel did or didn’t say or do put an ‘extraordinary’ obstacle in his path”). Moore v. Battaglia, 476 F.3d 504, 508 (7th Cir. 2007) (remanding the case to the district court to determine if the relevant statute of limitations was included in the prisoners’ library). Evidentiary hearings are not necessary if petitioner “makes allegations that are vague, conclusory, or palpably incredible, rather than detailed and specific.” Bruce v. United

States, 256 F. 3d 592, 597 (7th Cir. 2001); see also Boulb v. United States, 818 F. 3d 334.

However, an evidentiary hearing should be held if the petitioner “alleges facts that, if proven,

would entitle him to relief.” Sandoval v. United States, 574 F. 3d 847, 850 (7th Cir. 2009)

(internal citations omitted).

Mayberry presented enough evidence to the district court to show that his assertions of

mental incompetency and illiteracy were not mere conclusory statements. Mayberry did not

simply make conclusory allegations as he provided evidence for his claims. Mayberry’s

assertions included both Dr. Berney’s psychological evaluation as well as a prison classification

reports. Dr. Berney’s psychological evaluation showed that Mayberry consistently scored in the

“impaired” range on the tests administered. Mayberry included dependable proof of his mental

incompetency and illiteracy and did not depend on conclusory statements to show his

incompetence and was thus entitled to an evidentiary hearing. 14

Mayberry not only alleged that he was incompetent and illiterate, he also provided both a medical evaluation and a prison document noting his mental illness. He is entitled to an evidentiary hearing to further substantiate this claim. 15

CONCLUSION

For the foregoing reasons, petitioner, Charles J. Mayberry respectfully requests this Court to grant this petition for writ of certiorari.

Respectfully submitted,

______

/s/ Robert J. Palmer Robert J. Palmer

Robert J. Palmer Counsel of Record [email protected] MAY • OBERFELL • LORBER 4100 Edison Lakes Parkway, Suite 100 Mishawaka, IN 46545 Phone: (574) 243-4100 Fax: (574) 232-9789 and University of Notre Dame School of Law Notre Dame, IN 46556

Attorney for Petitioner

APPENDIX A Case: 17-1631 Document: 37 Filed: 09/14/2018 Pages: 11

In the United States Court of Appeals For the Seventh Circuit

No. 17-1631

CHARLES J. MAYBERRY, also known as CHARLES J. HOMESLEY, Petitioner-Appellant,

MICHAEL A. DITTMANN, Respondent-Appellee.

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.

ROVNER, Circuit Judge. In 2008, Charles Mayberry was convicted in Wisconsin state court of multiple counts of second-degree sexual assault and one count of false imprisonment. Mayberry challenged his convictions on both direct and collateral review in Wisconsin state court. After having one

1 Case: 17-1631 Document: 37 Filed: 09/14/2018 Pages: 11

2 No. 17-1631

federal petition for a writ of habeas corpus, 28 U.S.C. § 2254, dismissed by the district court as premature, Mayberry fully exhausted his state-court remedies and refiled his habeas petition in the district court. By this point, however, the one- year statute of limitations in the Anti-Terrorism and Effective Death Penalty (“AEDPA”), 28 U.S.C. § 2244(d), had expired, and so the district court dismissed Mayberry’s petition as untimely. Mayberry acknowledges that his petition was filed outside the one-year limitations period, but argues that he is entitled to equitable tolling on account of his history of mental illness, illiteracy, and lack of counsel to assist him. Alterna- tively, Mayberry argues that the district court should have held an evidentiary hearing to determine whether his mental limitations warranted equitable tolling. Because we conclude that the district court did not abuse its discretion in concluding that Mayberry failed to meet the high bar necessary to qualify for equitable tolling, we affirm. 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

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No. 17-1631 3

later, on March 5, 2012. See Anderson v. Litscher, 281 F.3d 672, 674 (7th Cir. 2002); 28 U.S.C. § 2244(d)(1)(A) (one-year limitations period runs from the date direct review concludes or the expiration of time for seeking such review) (emphasis added). 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 May- berry 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 28 U.S.C. § 2244(d)(2) excludes from the one-year limitations period only the time that a properly filed state-court application for post-conviction relief is pending, the clock on Mayberry’s one-year federal habeas filing period continued to run while his unexhausted habeas petition was in the district court. Thus, Mayberry’s one- year limitations period expired on March 20, 2013. Not until

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several months later, on June 26, 2013, did Mayberry did file a post-conviction motion in the Circuit Court for Dane County. Mayberry’s state court post-conviction motion, see Wis. Stat. § 974.06, repeated his argument that he had received ineffective assistance of counsel on account of counsel’s failure to raise the issue of Mayberry’s competence. Mayberry included a psychological evaluation from 1999 (in an entirely separate proceeding) by Dr. Kent M. Berney deeming Mayberry incompetent to stand trial and unlikely to “regain competency in the requisite time frame of 12 months.” The state court held a hearing and denied Mayberry’s motion on September 9, 2013. The Wisconsin Court of Appeals summarily affirmed the circuit court’s denial of Mayberry’s motion, and the Wisconsin Supreme Court denied review on November 4, 2015. 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 § 2244(d)(2) for the periods May- berry’s state post-conviction motions were pending). He repeated his claims of ineffective assistance of trial and appellate counsel for failing to investigate whether he was competent to stand trial. Recognizing that his petition was untimely, Mayberry also argued that he was entitled to equitable tolling on account of his mental limitations. 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.

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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 28 U.S.C. § 2253(c)(2), on the procedural question of Mayberry’s entitle- ment to equitable tolling as well as his underlying claims of ineffective assistance of counsel. 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. 28 U.S.C. § 2244(d)(1)(A). Equitable tolling of AEDPA’s one-year limitations period is an extraordinary remedy that is “rarely granted.” Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir. 2016) (internal quotations and citation omitted); Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2016). It is not, however, “a chimera–something that exists only in the imagination.” Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014). Rather, to satisfy the “high bar,” id. 763 F.3d at 684, for equitable tolling, a habeas petitioner must demonstrate “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and

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prevented timely filing.” E.g., Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A petitioner bears the burden of establishing both elements of the Holland test; failure to show either element will disqualify him from eligibility for tolling. Menominee Indian Tribe of Wisconsin v. United States, — U.S. —, 136 S. Ct. 750, 755–56 (2016); Lawrence v. Florida 549 U.S. 327, 336–37 (2007); see also Carpenter, 840 F.3d at 870. We review the district court’s conclusion that Mayberry was not entitled to equitable tolling for an abuse of discretion. Schmid v. McCauley, 825 F.3d 348, 350 (7th Cir. 2016);Socha, 763 F.3d at 684. 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

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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 § 2254 petition. This is especially true here, where the state has countered with evidence that Mayberry was later found competent to stand

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trial in that very 1999 proceeding for which Dr. Berney’s report was prepared, as well as two subsequent state-court proceedings in 2000 and 2004. Mayberry fails to explain how this past finding of incompetence, his low I.Q., or an unelaborated prison classification of “serious mental illness” “actually impaired his ability to pursue his claims.” Obriecht, 727 F.3d at 751. Indeed, the record indicates that within the one-year limitations period (presumably while suffering from all of these mental limitations), Mayberry managed to file a motion for a new trial in state court as well as the premature federal habeas petition he filed in the district court in November 2012. He also was able to eventually file his motion for post-conviction relief in state court, albeit after the his one-year limitations period had expired. 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 § 2254 petition that interfered with his inability to understand or pursue his habeas claim. Thus, although Mayberry’s mental limitations undoubt- edly made filing a petition for habeas corpus difficult, the district court did not abuse its discretion by concluding that he failed to show how those difficulties affected him during the relevant time period to such an extent that he qualifies for the extraordinary remedy of equitable tolling. See Carpenter, 840 F.3d at 873; see also Boulb v. United States, 818 F.3d 334, 340 (7th Cir. 2016) (petitioner’s allegations that he was “functionally illiterate” and “intellectually disabled” too “conclusory” to justify an evidentiary hearing). Because we agree with the district court that Mayberry has failed to establish the requisite extraordinary circumstances, it

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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

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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 were insufficient to establish reasonable diligence given that after filing requests for an extension petitioner waited until nearly seven months after limitations period expired to file habeas petition). 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

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discretion to decline to hold a hearing to evaluate Mayberry’s competency as it relates to his equitable tolling claim. Carpen- ter, 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 28 U.S.C. § 2254 as untimely.

APPENDIX B Case: 17-1631 Document: 38 Filed: 09/14/2018 Pages: 1

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Office of the Clerk Room 2722 - 219 S. Dearborn Street Phone: (312) 435-5850 Chicago, Illinois 60604 www.ca7.uscourts.gov

FINAL JUDGMENT September 14, 2018

Before: MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge

CHARLES J. MAYBERRY, also known as CHARLES J. HOMESLEY Petitioner - Appellant

No. 17-1631 v.

MICHAEL A. DITTMANN, Respondent - Appellee

Originating Case Information:

District Court No: 3:16-cv-00047-bbc Western District of Wisconsin District Judge Barbara B. Crabb

The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date.

form name: c7_FinalJudgment(form ID: 132)