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Supreme Court of the United States No. ______________________________ ______________________________________________________________________________ In The Supreme Court of the United States ________________ 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 i 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. ii 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 v 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 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
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