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Untimely habeas petition might be saved by equitable tolling

Anastazia Schmid v. Steven McCauley, 7th Circuit Court of Appeals No. 14-2974, 2016 WL 3190670, 6/8/16

Because the record discloses Schmid suffers from some sort of mental disability and may have been hindered by counsel’s failure, the district court acted too hastily in dismissing Schmid’s untimely habeas petition; instead it should have appointed counsel and, if necessary, held an evidentiary hearing to determine whether Schmid’s deadline was subject to equitable tolling.

The district court recognized that the deadline in [28 U.S.C.] § 2244(d) is subject to equitable tolling if “extraordinary circumstances” prevent timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Abandonment by counsel is one potentially extenuating circumstance, see Maples v. Thomas, 132 S.Ct. 912 (2012), and inability to access vital papers is another, see Socha v. Boughton, 763 F.3d 674 (7th Cir. 2014); Estremera v. United States, 724 F.3d 773, 777 (7th Cir. 2013). The Supreme Court observed in Christeson v. Roper, 135 S.Ct. 891 (2015), that a prisoner’s mental disability in conjunction with abandonment by counsel may justify the appointment of new counsel to explore the question whether the disability tolls the period of limitations. Nonetheless the district court denied Schmid’s petition as untimely. …. The judge stated that Schmid had failed to explain which particular documents she needed in order to file a petition under § 2254 or why she needed them. With respect to Schmid’s claim of mental disability, the court said nothing at all.

We must assume for the purpose of this appeal that Schmid is afflicted by some mental disability—perhaps schizophrenic delusions (her defense at trial), perhaps post-traumatic stress disorder, perhaps both, or perhaps something else. Counsel representing Indiana was unable to tell us at oral argument what a verdict of “guilty but mentally ill” means under that state’s practice. But the fact that Schmid has some kind of mental problem—her substantive constitutional argument is that she was not competent to stand trial in the first place—colors everything else in the case. Schmid could not explain to the district judge’s satisfaction either the nature of her disability (and how it impeded timely filing) or why she needed the papers that former counsel did not turn over until October 2013. Yet a mental disability might itself prevent an unrepresented prisoner from elucidating such matters.

As in Christeson this suggests that the district court’s first step should have been to appoint counsel for Schmid under 18 U.S.C. § 3006A(a)(2)(B). (Christeson dealt with 18 U.S.C. § 3599, which uses the same standard as § 3006A(a)(2)(B).) Counsel could have investigated Schmid’s mental condition and explored the contents of prior counsel’s files, formulating an explanation for delay satisfactory to the district judge. We remand this case with directions to appoint counsel and, if appropriate, hold an evidentiary hearing.

(Slip op. at 3-4).

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