7th Circuit reinstates habeas case for inquiry about man’s brain injury

Questions about whether a man’s brain injury caused his delay in seeking review in his case should be determined by the Southern District Court, and if so, whether the circumstances collectively justify the use of equitable tolling, the 7th Circuit Court of Appeals ruled Wednesday. The panel also ordered counsel be appointed as it reinstated a convicted killer’s habeas petition.

DeWayne Perry, serving time for murder, suffers from aphasia, which impairs his ability to understand words, speak or write. Perry’s aphasia — a condition that can range from moderate limitations to complete disability — stemmed from brain damage from a stroke.

Disputes arose between Perry’s volunteer counsel and the state of Indiana as to how limiting his condition is, which the 7th Circuit sought to address in a Feb. 12 decision.

Perry pursued both direct and collateral review in Indiana’s courts, but an initial lawyer appointed to represent him in the collateral attack “did nothing for him and eventually bailed out, leaving Perry unrepresented.” After appointed counsel quit and Perry was denied a request for more time, he tried to dismiss his collateral attack without prejudice. His subsequent renewed application was dismissed, however, with the state judge ruling that the original dismissal had been with prejudice.

Perry then filed in federal court a habeas petition under 28 U.S.C. §2254, but that was summarily dismissed. His second state proceeding was not properly filed, the federal judge determined, because a second or successive collateral attack in Indiana requires judicial permission that Perry did not seek or obtain. Perry conceded that his federal petition was untimely but asked for an excuse of the delay based on equitable tolling.

Agreeing with the state, the district court concluded that equitable tolling is possible only when some “external obstacle” impeded timely filing. Thus, the district court found aphasia to not be an “external” obstacle, but instead a limitation within the petitioner.

A panel of the 7th Circuit, however, noted that “many cases have concluded that an applicant’s mental limitations can support equitable tolling,” including Mayberry v. DiEmann, 904 F.3d 525, 530 (7th Cir. 2018) and Schmid v. McCauley, 825 F.3d 348, 350 (7th Cir. 2016).

“These cases show that an ‘external obstacle’ is a barrier beyond a litigant’s control. The extent of legal information is controllable; an inmate can go to the prison library and look up the deadline (or ask the librarian or a jailhouse lawyer to do so for him). But mental shortcomings may limit a prisoner’s power to engage in self-help,” Judge Frank Easterbrook wrote for the 7th Circuit.

The panel concluded that the record before it did not permit it to distinguish two possibilities: whether Perry’s difficulties stem from a brain injury that left him unable to understand or use language well enough to protect his interests; or, whether his difficulties stem from his failure to perform enough legal research to understand which time in state court would be excluded under §2244(d)(2) and which would not.

Additionally, it concluded that the district judge, “having mistakenly believed that brain injuries never permit equitable tolling, did not gather the evidence necessary to decide which of these possibilities (or perhaps some other) explains Perry’s delay.” The record, it noted, does not contain any medical analysis of Perry’s verbal abilities during “the important times.”

“…The district court needs to determine whether a brain injury caused Perry’s delay in seeking review under §2254, and if so whether circumstances as a whole justify equitable tolling. Once such a decision has been made, appellate review will be deferential, but we cannot act on the district judge’s behalf,” the 7th Circuit wrote. “Decision will depend on medical evidence that the record lacks. Because Perry’s aphasia could frustrate his ability to gather and present such evidence on his own, it is appropriate for the district court to appoint counsel to assist him.”

The 7th Circuit therefore vacated the district court’s decision and remanded for further proceedings in DeWayne Perry v. Richard Brown, 19-1683.

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