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Federal habeas petition too conclusory to merit evidentiary hearing on whether equitable tolling applies

Brian K. Boulb v. United States, 7th Circuit Court of Appeals No. 15-1383, 4/4/16

Boulb filed a § 2255 habeas petition challenging his federal conviction 16 months after the conviction was final. That was four months too late. Boulb argued he was entitled to equitable tolling of the 12-month filing deadline because of his mental incompetence, but his allegations aren’t sufficient to justify an evidentiary hearing on the question.

In Davis v. Humphreys, 747 F.3d 497 (7th Cir. 2014), we held that mental incompetence can satisfy the equitable tolling standard articulated by the Supreme Court in Holland [v. Florida, 560 U.S. 631 (2010)]. We declined, however, to articulate “[w]hat sort of mental limitations justify tolling.” Davis, 747 F.3d at 499–500. Instead, we remanded to the district court for an evidentiary hearing to determine the petitioner’s mental abilities. Id. at 501.

Boulb argues that we should follow Davis’s result and remand this case to the district court for an evidentiary hearing. According to Boulb, his case is analogous to Davis in that there is insufficient information in the record to determine what Boulb’s mental capabilities were and whether those affected his ability to timely file his § 2255 petition.

The problem for Boulb is that the petitioner in Davis provided specific facts about those alleged mental deficiencies, not conclusory allegations. In Davis, the petitioner appended a report from the Wisconsin prison system to his motion, which stated he had “an IQ of 49, [was] illiterate and uneducable, and cannot cope with any legal subject.” 747 F.3d at 500. Boulb provided no such detailed report. Instead, Boulb attached a document to his petition entitled “Inmate Education Data Transcript.” The data transcript includes a series of courses he took, “High Test Scores” in various subjects, including “Number OPR,” “Reading Comp,” and “Spelling,” and scores for those tests. Nothing in this “transcript” explains how to interpret these scores. How could a district court ever divine from this “transcript” that Boulb had any mental deficiency?

As for Boulb’s allegations that he is “‘intellectually disabled’” and “‘functionally illiterate,’” those allegations are conclusory and insufficient to justify an evidentiary hearing. …. While it is true that we recognized illiteracy as one of many facts in Davis supporting a remand for an evidentiary hearing, it was a fact corroborated by the Wisconsin prison system, not asserted by the petitioner himself. Boulb offers no such specific details in his motion, affidavit, or supporting documents regarding his purported mental deficiencies. (Slip op. at 10-11).

The court recognizes “the inherent tension between requiring a petitioner to raise an argument and permitting mental incompetence to equitably toll the statute of limitations, for if a petitioner is so mentally deficient as to excuse late filing, it could be unfair to expect him to raise and articulate that excuse.” A petitioner’s mental incompetency may be so apparent from his pleadings and supporting materials that a court could order an evidentiary hearing without the petitioner requesting equitable tolling on account of mental disability. “That is not, however, the situation we have here.” (Slip op. at 12).

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