JEROME T. DAVIS, Petitioner-Appellant,
BOB HUMPHREYS, Warden, Kettle Moraine Correctional Institution, Respondent-Appellee
Argued March 5, 2014
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-CV-680 -- Patricia J. Gorence, Magistrate Judge.
For Jerome T. Davis, Petitioner - Appellant: Michael E. Rowe, Mayer Brown Llp, Chicago, IL.
For BRIAN FOSTER, Warden, Respondent - Appellee: Warren D. Weinstein, Office of The Attorney General, Madison, WI.
Before EASTERBROOK, MANION, and HAMILTON, Circuit Judges.
Easterbrook, Circuit Judge
In Joseph Heller's Catch-22, Yossarian wants to stop serving as a bombardier during World War II. Insanity is a reason for being grounded, and Yossarian tries to convince Doc Daneeka that he is insane--but to ask proves sanity, because an insane person would want to fly more missions. Catch-22. Jerome Davis, who is in prison following a guilty plea, wants federal collateral relief but did not seek it until the year allowed by 28 U.S.C. § 2244(d) had expired. Equitable tolling can allow a belated application. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Demonstrating entitlement to tolling requires a motion, which Davis made. He maintains that his mental limitations excuse untimely filing. A magistrate judge found, however, that anyone able to make such a motion has shown mental competence and disqualified himself from tolling. Catch-22.
The federal judiciary should avoid using Catch-22. For all this record shows, Davis could make a motion only because someone else drafted and mailed it for him. No one doubts that, if the " someone else" were a lawyer who accepted the case after the year had passed, then the lawyer's skills would not be imputed to Davis and prevent application of a tolling doctrine. That the " someone else" was a fellow prisoner--as Davis, now represented by counsel, maintains--should not make a difference. Tolling depends on the competence of the prisoner or an agent engaged before the year is up; an agent of any kind retained after the time has run does not retroactively prevent tolling. So
the ground of the district court's decision is untenable.
This conclusion does not itself make the application timely. We must ask three more questions: First, is mental incompetence ever enough to justify equitable tolling of the time provided by § 2244(d)? Second, if the answer is yes, how incompetent is incompetent enough? Third, does Davis's mental condition meet that standard?
At least three circuits have held that mental incompetence can satisfy the standard for tolling established in Holland . See Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011); Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010); Riva v. Ficco, 615 F.3d 35, 40 (1st Cir. 2010). Before Holland, several other circuits had reached the same conclusion.
See, e.g., Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010); Hunter v. Ferrell, 587 F.3d 1304, 1309-10 (11th Cir. 2009). We agree, though not because of any language in § 2244(d) or the rest of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), of which § 2244(d) is a part. The Supreme Court treats tolling as one of those background understandings in American law that applies unless a statute modifies or excludes the doctrine. See Lozano v. Montoya Alvarez, 188 L.Ed.2d 200, 205 (U.S. Mar. 5, 2014); Young v. United States, 535 U.S. 43, 49-50, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002). This is as true of details as it is of whether tolling is available at all. Thus we inquire whether mental incompetence supports tolling other federal statutes of limitations.
Although the Supreme Court has never addressed that question, courts of appeals regularly hold that mental incompetence justifies the tolling of federal periods of limitations. Barrett v. Principi, 363 F.3d 1316, 1319-20 (Fed. Cir. 2004), collects decisions from most circuits. Our own leading decision is Miller v. Runyon, 77 F.3d 189 (7th Cir. 1996), which dealt with tolling the periods for federal employment-discrimination statutes. That there seem to be more recent decisions concerning mental incompetence and tolling under the AEDPA than under all other federal statutes put together may reflect the fact that outside prison an incompetent person often has a guardian, who must adhere to statutory time limits. Mentally incompetent persons in prison, by contrast, usually do not have the benefit of a guardian who attends to their legal problems--nor are prisoners who want to seek collateral relief automatically entitled to appointed counsel. Davis did not have a lawyer until this court issued a certificate of appealability, see 28 U.S.C. § 2253(c), and appointed counsel ...