Petition for Writ of Certiorari — Chadwick Dotson, Director, Virginia Department of Corrections, Petitioner v. Berman Justus, Jr.

No. 23-

In the

Supreme Court of the United States

CHADWICK DOTSON,

v.

BERMAN JUSTUS, JR.,

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

JASON S. MIYARES

Attorney General of

Virginia

ANDREW N. FERGUSON

Solicitor General

Counsel of Record

M. NICOLE WITTMAN

Deputy Attorney

General

ERIKA L. MALEY

Principal Deputy

Solicitor General

RICK W. EBERSTADT

Assistant Solicitor

General

KEVIN M. GALLAGHER

Deputy Solicitor

General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

aferguson@oag.state.va.us

Counsel for Petitioner

ii

QUESTION PRESENTED

Whether a habeas petitioner can show that a mental illness constitutes an “extraordinary circumstance” that warrants reopening a final judgment under Federal Rule of Civil Procedure 60(b)(6), and equitably tolling the statute of limitations, without evidence that the mental illness rendered the petitioner

incapable of filing during the limitations period?

iii

PARTIES TO THE PROCEEDING

Petitioner is Chadwick Dotson, Director of the Virginia Department of Corrections, whose predecessor

was the respondent in the district court and the appellee in the court of appeals.

Respondent Berman Justus, Jr., who is serving a

sentence for murder in a Virginia prison, was the petitioner in the district court and appellant in the court

of appeals.

iv

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to

this case within the meaning of Rule 14.1(b)(iii):

•

•

•

•

•

•

•

Justus v. Clarke, No. 20-6351 (4th Cir.),

judgment entered on August 15, 2023;

Justus v. Clarke, No. 7:13-cv-00461-NKMJCH (W.D. Va.), judgment entered on February 28, 2020;

Justus v. Clarke, Record No. 121985 (Va.),

petition for appeal refused on June 20, 2013;

Justus v. Clarke, No. CL12-60 (Greene

Cnty. Cir. Ct.), judgment entered in September 2012;

Justus v. Watson, No. CL10-000156 (Greene

Cnty. Cir. Ct.), judgment entered on February 28, 2011;

Justus v. Commonwealth, Record No. 069007-2 (Va. Ct. App.), judgment entered on November 30, 2007;

Commonwealth v. Justus, Nos. CR04-125

and CR04-127 through CR04-130 (Greene

Cnty. Cir. Ct.), judgment entered on January 23, 2007.

v

TABLE OF CONTENTS

QUESTION PRESENTED......................................... ii

PARTIES TO THE PROCEEDING .......................... iii

STATEMENT OF RELATED PROCEEDINGS........iv

TABLE OF AUTHORITIES ......................................vi

PETITION FOR A WRIT OF CERTIORARI .............1

OPINIONS BELOW ....................................................3

JURISDICTION ..........................................................3

RULE OF PROCEDURE INVOLVED .......................3

STATEMENT ..............................................................4

REASONS FOR GRANTING THE PETITION ....... 10

I. Courts are divided over the standard for

reopening final judgments for habeas petitioners

on grounds of mental illness .................................. 11

II. The question presented is important .............. 18

III. The Fourth Circuit is incorrect ....................... 22

CONCLUSION .......................................................... 25

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Ata v. Scutt,

662 F.3d 736 (6th Cir. 2011) ................................ 17

Biester v. Midwest Health Services, Inc.,

77 F.3d 1264 (10th Cir. 1996) .............................. 14

Calderon v. Thompson,

523 U.S. 538 (1998) .......................................... 1, 20

Collins v. Scurr,

230 F.3d 1362 (8th Cir. 2000) (table) ................. 18

Conroy v. Thompson,

929 F.3d 818 (7th Cir. 2019) ................................ 13

Engle v. Isaac,

456 U.S. 107 (1982) .............................................. 20

Fisher v. Gibson,

262 F.3d 1135 (10th Cir. 2001) ............................ 18

Gonzalez v. Crosby,

545 U.S. 524 (2005) ...................................... passim

Harrington v. Richter,

562 U.S. 86 (2011) .......................................... 20, 22

Holland v. Florida,

560 U.S. 631 (2010) .............................................. 22

Hunter v. Ferrell,

587 F.3d 1304 (11th Cir. 2009) ............................ 16

vii

Jones v. Stephens,

541 Fed. Appx. 499 (5th Cir. 2013) ..................... 15

Kuhlmann v. Wilson,

477 U.S. 436 (1986) .............................................. 20

Laws v. Lamarque,

351 F.3d 919 (9th Cir. 2003) ................................ 16

Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847 (1988) .............................................. 24

Mayberry v. Dittman,

904 F.3d 525 (7th Cir. 2018) ................................ 17

Murray v. Carrier,

477 U.S. 478 (1986) .............................................. 21

Nara v. Frank,

264 F.3d 310 (3d Cir. 2001), overruled in

part on other grounds by Carey v.

Saffold, 536 U.S. 214 (2002) ................................ 15

Obriecht v. Foster,

727 F.3d 744 (7th Cir. 2013) ................................ 13

Rios v. Mazzuca,

78 Fed. Appx. 742 (2d Cir. 2003) ......................... 14

Riva v. Ficco,

615 F.3d 35 (1st Cir. 2010) ............................ 12, 13

Riva v. Ficco,

No. 01-12061, 2007 WL 954771 (D.

Mass. Mar. 28, 2007)............................................ 12

viii

Shinn v. Ramirez,

596 U.S. 366 (2022) .................................. 20, 21, 22

Smith v. Saffle,

28 Fed. Appx. 759 (10th Cir. 2001) ..................... 14

Stutson v. United States,

516 U.S. 193 (1996) .............................................. 19

Wallace v. Kato,

549 U.S. 384 (2007) .............................................. 24

Watkins v. Deangelo-Kipp,

854 F.3d 846 (6th Cir. 2017) .................... 14, 16, 17

Woodford v. Garceau,

538 U.S. 202 (2003) .............................................. 22

Statutes

28 U.S.C. § 2244 ........................................................ 22

Other Authorities

Equitable tolling-Extraordinary

circumstances-Mental and physical

disabilities of the petitioner,

Postconviction Remedies § 25:45 ......................... 19

Federal Rule of Civil Procedure 60 ................... passim

Mental incompetency and physical

disabilities, Federal Habeas Manual

§ 9A:107 ................................................................ 19

S. Ct. R. 10 ........................................................... 12, 22

ix

U.S. Dept. of Justice, Community Oriented

Policing Services Dispatch Volume 15,

Mental Health and Reentry: How Court

Services Offender Agency Meets the

Challenge of Mental Health Community

Supervision (May 2022), available at

https://tinyurl.com/4xz9anss ............................... 19

11 Wright & Miller, Federal Practice &

Procedure § 2852 .................................................. 21

PETITION FOR A WRIT OF CERTIORARI

Only with “real finality” can “the victims of crime

move forward knowing the moral judgment will be

carried out.” Calderon v. Thompson, 523 U.S. 538, 556

(1998). “To unsettle these expectations is to inflict a

profound injury to the powerful and legitimate interest in punishing the guilty, an interest shared by the

State and crime victims alike.” Ibid. (quotation marks

and citation omitted). The Fourth Circuit has seriously undermined that powerful interest in finality by

holding that a habeas petitioner’s mental illness constitutes an “extraordinary circumstance” whenever it

renders him “unable” to “understand the need to

timely file,” and that a petitioner may lack this ability

even if he is not mentally incompetent, presented no

evidence of his mental state during the limitations period, and made filing after filing in other courts during

the limitations period. App. 32a.

That erroneous decision exacerbates a circuit split

on a question of critical importance to the States and

victims of crime: the showing that a federal habeas

petitioner must make to reopen a judgment based on

his mental illness. Because the petitioner had been diagnosed with what the Fourth Circuit characterized

as a serious “lifelong illness,” the court joined other

circuits in holding that a habeas petitioner could show

“extraordinary circumstances” despite presenting no

evidence of his mental condition during the relevant

limitations period, and despite engaging in extensive

litigation in other courts during the same period. App.

33a. Other federal courts of appeals—including the

Sixth, Seventh, and Tenth Circuits—have held that a

habeas petitioner’s ability to file other legal documents during the tolling period demonstrates that his

mental illness was not an “extraordinary circumstance” that requires tolling the federal habeas

2

statute, and that a petitioner cannot obtain equitable

tolling when he fails to produce evidence of the effect

of his mental illness during the tolling period itself.

This Court’s intervention is required to resolve the

split between the courts of appeals on the showing required to reopen final judgments and equitably toll

habeas petitions due to mental illness.

This question of federal law is important. Significant percentages of habeas petitioners claim to have

serious mental health conditions. Large numbers of

them fail to file their habeas petitions within the statute of limitations. The ill-defined and overly lax standard adopted by the Fourth Circuit below thus creates

an enormous loophole through which many untimely

petitions may pour, leading to the reopening of untold

numbers of final state convictions. This result flies in

the face of this Court’s repeated instruction that federal courts must respect the finality of state convictions and those circumstances justifying reopening a

judgment “will rarely occur in the habeas context.”

Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Further,

the Fourth Circuit’s holding that district courts must

have evidentiary hearings on such tolling questions

will be highly burdensome both to the States and to

the district courts. These problems are especially

acute given that that they will require courts to hold

evidentiary hearings and reopen cases that are exceedingly stale. Indeed, the ruling here requires the

district court to hold an evidentiary hearing for a petition untimely filed several years ago that challenges

a sixteen-year-old murder conviction.

The Fourth Circuit’s ruling was also incorrect,

joining the wrong side of the circuit split. This Court

requires “extraordinary circumstances” before reopening a judgment and before equitably tolling the

3

statute of limitations under the Anti-Terrorism and

Effective Death Penalty Act (AEDPA). But the Fourth

Circuit applied an exceedingly lenient standard that

would allow for a finding of “extraordinary circumstances” in all too ordinary situations. Without correction, any prisoner with a mental illness can attempt

to reopen his judgment through equitable tolling, even

if he is not profoundly incapacitated or incompetent.

This Court should grant the petition.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a–50a)

is reported at 78 F.4th 97. The district court’s opinion

dismissing Respondent Berman Justus, Jr.’s habeas

corpus petition as untimely is unpublished but reproduced at App. 51a–55a. The district court’s order

denying Justus’s Rule 60(b)(6) motion is unpublished

but reproduced at App. 56a–61a.

JURISDICTION

The court of appeals entered its judgment on August 15, 2023. On October 25, 2023, the Chief Justice

extended the time for filing a petition for a writ of certiorari to December 13, 2023. See No. 23A370. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

RULE OF PROCEDURE INVOLVED

Federal Rule of Civil Procedure 60 provides, in relevant part:

(b) On motion and just terms, the court may relieve

a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable

neglect;

4

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time

to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or

discharged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospectively

is no longer equitable; or

(6) any other reason that justifies relief.

STATEMENT

In November 2003, Berman Justus, Jr. murdered

his estranged wife, Amanda Justus, in the front seat

of her car while their four-year-old son sat in the back

seat. App. 2a. Justus also shot and killed Amanda’s

boyfriend, Joe White. Ibid. On the day he was arrested, Justus told the police that he shot his wife “because she was keeping their son from him.” App. 5a.

Following his arrest for the murders, Justus was

twice found incompetent to stand trial and was twice

admitted to a hospital for treatment to restore his

competency. App. 3a. During those stints, he was diagnosed with Bipolar Disorder (Most Recent Episode

Mixed, with Psychosis). Ibid.

In January 2007, a Virginia trial court convicted

Justus of crimes including first-degree murder. App.

3a–4a. Justus did not deny that he murdered both victims; instead, Justus argued at trial that he was acting on the delusion that God commanded him to kill

his ex-wife and her boyfriend. App. 4a. Two experts

5

testified during trial about Justus’s sanity at the time

of the murders: one testified that Justus did not become psychotic until after the killings; the other

(while stating that Justus had “features of psychosis”)

had no opinion about Justus’s sanity during the murders. App. 5a. The state court thus concluded that

Justus was not legally insane at the time of the murders, found him guilty of the offenses, and sentenced

him to two life sentences plus eighteen years in

prison. App. 4a.

Justus appealed his conviction to the Virginia

Court of Appeals and argued that the trial court had

erred by failing to find him not guilty by reason of insanity. App. 5a. In November 2007, the Virginia Court

of Appeals denied Justus’s claim, holding that the record did not show that he was insane at the time of the

offenses based on his own testimony, as well as his

statements to police on the night of the murders. Ibid.

Justus’s counsel failed to file a petition for appeal of

the Court of Appeals’ decision to the Virginia Supreme

Court. App. 5a–6a.

Medical records show that Justus received mental

health treatment from the Virginia Department of

Corrections during this time, from May 2007 to August 2008. App. 4a. The record “includes no treatment

records between September 2008 and April 2016,”

however. Ibid.

During that gap in his medical records, Justus continued actively to challenge his convictions. In May

2010, Justus filed a Virginia State Bar complaint

against his trial counsel, complaining of his counsel’s

failure to perfect his direct appeal of his conviction.

App. 6a. In the summer and early fall of 2010, after

receiving his counsel’s explanation as to why he had

failed to perfect an appeal to the Virginia Supreme

6

Court, Justus sent two letters to his counsel asking for

assistance in challenging his conviction. App. 47a

(Niemeyer, J., dissenting). His counsel advised him to

file a state habeas petition. Ibid.

Justus filed his first state habeas petition in November 2010, alleging ineffective assistance of counsel. Ibid. Justus filed an amended petition in January

2011, arguing that his counsel had been ineffective in

“fail[ing] to perfect [his] appeal.” Ibid. The state court

denied the petition as untimely. App. 6a–7a. In early

January 2012, Justus filed a second State Bar complaint against his trial counsel. App 47a–48a

(Neimeyer, J., dissenting). He also wrote a letter following up on his second complaint, and wrote a note

to the mailroom at his prison to request confirmation

that it had not received mail from his trial counsel.

App. 48a (Niemeyer, J., dissenting). Justus then filed

a second state habeas petition in June 2012. App. 7a.

The state court dismissed this claim as untimely, and

Justus filed a petition for appeal with the Virginia Supreme Court. Ibid. The Virginia Supreme Court denied the petition in June 2013. Ibid.

Justus sought federal habeas relief for the first

time on September 24, 2013, more than six years after

his conviction and more than three years after he first

complained to the Virginia State Bar that his attorney

had failed to perfect his appeal. See ibid. The petition

brought the same ineffective assistance of counsel

claim he had raised in his first state habeas petition.

Ibid. The district court noted that the petition appeared to be untimely, and ordered Justus to submit

any additional information or argument regarding the

timeliness of his petition. Ibid. Justus filed a submission in response to the district court’s order but did

not address the court’s timeliness concern. Ibid. In

7

June 2014, the district court accordingly held that

Justus’s petition was untimely. Even after assuming

that Justus had exercised due diligence in discovering

his claim and had immediately filed in response to

that discovery, the district court held that the petition

was time-barred and dismissed it. See App. 51a–55a.

Over five years later, in August 2019, Justus filed

a motion in the district court to reopen the court’s

judgment dismissing his federal habeas petition under Federal Rule of Civil Procedure 60(b)(6). App. 8a.

In this motion, Justus argued for the first time that

his mental health had affected his ability to file a

timely federal habeas petition and that the one-year

limitations period applicable to federal habeas petitions should have been equitably tolled. Ibid. None of

the medical records and related documents that

Justus attached to the motion provided information

about his mental state from 2010 to 2013, when the

federal limitations period had run. See App. 4a. Instead, the records covered the time period from 2007

to September 2008 and from April 2016 to August

2016. Ibid. And this evidence showed that the severity

of Justus’s symptoms fluctuated over time: for instance, in November 2007, medical staff reported no

mental health issues for Justus, and in April 2016

Justus reported that he was “not having too many issues with” his disorder as long as he could keep his

stress level in check. App. 45a–46a (Niemeyer, J., dissenting).

The district court denied the reconsideration motion. See App. 56a–61a. It held that, although Justus’s

medical records showed serious diagnoses, he had

failed “to show that his mental problems were so profound that they prevented him from filing basically at

any time from the date he discovered his attorney’s

8

error (in May 2010) through some point in 2012.” App.

60a. Justus had therefore failed to establish the sort

of “extraordinary circumstances” that would entitle

him to reopen his judgment and equitably toll the

statute of limitations. App. 60a–61a.

A divided panel of the Court of Appeals for the

Fourth Circuit reversed. See App. 1a–50a. First, the

court concluded that Justus’s Rule 60(b)(6) motion

had been filed “within a reasonable time” as required

by Rule 60(c)(1) “[g]iven the extensive evidence documenting [his] severe mental disabilities,” notwithstanding that Justus waited more than five years after judgment was entered. App. 28a.

Second, the court held that a petitioner’s “mental

impairment” is an “extraordinary circumstance[ ]”

justifying equitable tolling of the AEDPA statute of

limitations if it is “sufficiently profound.” App. 32a. A

mental impairment is “sufficiently profound,” the

court held, “if it renders him unable to comply with

the filing deadline,” rejecting a higher standard that

would require “institutionalization or adjudged mental incompetence.” App. 31a–32a.

Third, the court “collapse[d] the Rule 60(b)(6) and

equitable tolling ‘extraordinary circumstances’ inquiries for the purpose of this analysis.” App. 30a. It accordingly held that if a mental illness would justify

tolling the AEDPA statute of limitations, it would also

qualify as an “extraordinary circumstance[ ]” justifying relief under Rule 60(b)(6). App. 30a. The court concluded that a “lifelong illness” qualified as an extraordinary circumstance justifying equitable tolling of the

AEDPA statute of limitations. App. 33a. Therefore,

the court held, Justus’s failure to provide evidence of

his inability to file during the tolling period was insignificant because “his earlier and later medical records

9

provide evidence of his mental functioning during the

relevant period.” Ibid. The court also held that

Justus’s copious litigation filings in other venues during the tolling period did “not preclude a finding that

Justus’s mental illness during that timeframe

amounts to an ‘extraordinary circumstance’” because

“they do not speak to his ability ‘rationally or factually

to personally understand the need to timely file.’”

App. 36a. It interpreted Rule 60(b)(6) to be “a grand

reservoir of equitable power to do justice in a particular case,” and that grand reservoir overcame the importance of finality. App. 37a. The court concluded

that “the district court abused its discretion in failing

to hold an evidentiary hearing,” because “[g]iven

Justus’s evidence and allegations of his severe and

continuing mental illness, this case strikes us as one

that likely ‘cries out for the exercise of that equitable

power’” to toll the limitations period. Ibid.

Judge Niemeyer dissented. He explained that the

majority had erred because it “completely overlook[ed]

the Supreme Court’s express admonition” in habeas

cases that “lower courts should be especially demanding before finding that extraordinary circumstances

justifying a reopening are present.” App. 40a (Niemeyer, J., dissenting). The dissent explained that the

majority had committed “legal error” by “collapsing”

the “extraordinary circumstances” inquiry under Rule

60(b)(6) with the “distinctly different analysis” required for determining timeliness under AEDPA.

App. 40a–41a (Niemeyer, J., dissenting) (cleaned up)

(citing Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)).

And it explained that the majority had erred by “forswear[ing] the need for any medical records documenting Justus’s mental illness during the relevant

period,” and, “perhaps most problematic,” by “fail[ing]

to account in any meaningful way for evidence in the

10

record demonstrating that during the relevant period,

Justus was able to, and did, file relevant and complicated pleadings in court and conduct related correspondence.” App. 42a (Niemeyer, J., dissenting).

Thus, the dissent concluded that the record “simply

does not show,” and “indeed, is inconsistent with finding,” that Justus’s filing delay “can be justified on the

ground that he was mentally incapable of timely filing

that petition.” Ibid.

This petition followed.

REASONS FOR GRANTING THE PETITION

The decision below widens a circuit split on the

standard for a habeas petitioner to establish “extraordinary circumstances” to reopen a judgment on

grounds of mental illness. The Fourth Circuit joined

the First, Third, Ninth and Eleventh Circuits in holding that a federal habeas petitioner who has been diagnosed with a serious mental health condition can

reopen the judgment through equitable tolling, even

when he (1) lacks contemporaneous evidence of his

mental condition during the tolling period, and (2)

submits other filings during the tolling period but fails

to file his federal habeas petition. Other circuits—including the Sixth, Seventh, and Tenth—have held

that these circumstances demonstrate that equitable

tolling on the grounds of mental incapacity to file a

petition timely is inappropriate.

This question is unquestionably important because it impairs the finality of untold numbers of

criminal sentences. A substantial percentage of federal habeas petitioners claim that they have serious

mental health conditions. Many of them file untimely

petitions and seek equitable tolling for their claims.

The Fourth Circuit’s unduly capacious standard for

when a petitioner is “unable” to file timely due to

11

mental illness thus creates a large loophole in

AEDPA’s strict filing requirements through which

countless untimely petitions will pour. It seriously undermines the finality of state convictions and will require the reopening and potential retrial of decadesold convictions. At the very least, it will likely require

large numbers of evidentiary hearings which will be

highly burdensome and resource-intensive for both

States and district courts, particularly given the

lengthy passage of time.

Further, the Fourth Circuit’s ruling is deeply erroneous. The court’s overly lax standard for tolling the

AEDPA statute of limitations flouts this Court’s repeated admonition that the “extraordinary circumstances” requirement for reopening final judgments in

habeas cases should be especially demanding. The

court also erroneously collapsed the “extraordinary

circumstances” analyses of Rule 60(b)(6) and equitable tolling, and ignored this Court’s holdings that

“Rule 60(b) proceedings are subject to only limited and

deferential appellate review.” Gonzalez, 545 U.S. at

535.

I. Courts are divided over the standard for reopening final judgments for habeas petitioners on grounds of mental illness

The Fourth Circuit widened a circuit conflict on

the proper standard for Rule 60(b)(6) motions when a

habeas petitioner claims that his mental illness is an

“extraordinary circumstance” justifying the reopening

of a final judgment through equitable tolling. The

Fourth Circuit held that “[i]n the habeas context . . . a

petitioner’s mental impairment is sufficiently profound [to toll the limitations period] if it renders him

unable to comply with the filing deadline,” rejecting a

higher standard that would require a showing of

12

“mental incompetence.” App. 31a–32a. Under this

standard, it held that a petitioner could attempt to reopen a judgment on grounds of mental illness through

equitable tolling even where he engaged in significant

litigation practice during the limitations period and

did not provide any medical records detailing his illness during the limitations period. Other federal

courts of appeals have disagreed and adopted a more

stringent standard. This conflict warrants this Court’s

review. See S. Ct. R. 10(a).

1. The Fourth Circuit joined the First Circuit in

holding that a petitioner can demonstrate that his

mental illness is an “extraordinary circumstance” rendering him “unable” to file a federal habeas petition

despite engaging in significant litigation practice during the limitations period. The Fourth Circuit below

held that Justus’s numerous other filings during the

limitations period did not “preclude a finding that

Justus’s mental illness during that timeframe

amounts to an ‘extraordinary circumstance’” for Rule

60(b)(6) relief. App. 36a. It held that Justus’s other filings “do not speak to his ability . . . to understand the

need to timely file” his federal habeas petition, and

therefore his mental illness could constitute an “extraordinary circumstance” justifying tolling. Ibid.

The First Circuit similarly held that a district

court erred when it ruled that a habeas petitioner’s

mental illness did not constitute extraordinary circumstances to toll the AEDPA statute of limitations

because “the petitioner’s prolific filings in both state

and federal courts demonstrated a capacity to comply

with the filing deadline.” Riva v. Ficco, 615 F.3d 35,

39 (1st Cir. 2010) (citing Riva v. Ficco, No. 01-12061,

2007 WL 954771, at *5 (D. Mass. Mar. 28, 2007)). Specifically, the court held that the district court had

13

erred in its “heavy reliance on the fact of the petitioner’s filings as opposed to either their content or

their quality.” Id. at 43. 1

Several other courts of appeals, however, have

come to the opposite conclusion, holding that a petitioner’s mental illness does not constitute an “extraordinary circumstance” excusing untimely filing where

the petitioner was capable of engaging in other litigation practice during the limitations period. The Seventh Circuit in Obriecht v. Foster, for example, denied

equitable tolling for mental illness when, among other

reasons, the petitioner filed direct and collateral appeals in state court during the period in which “he assert[ed] that his mental health prevent[ed] him from”

filing, without offering any “explanation for how he

was able to file in those cases but not in” his federal

habeas case. 727 F.3d 744, 751 (7th Cir. 2013). In

2019, the Seventh Circuit again held that a petitioner’s other filings during the limitations period—

including a post-conviction petition and a request for

counsel with the state court—“show that [the petitioner] had the capacity to engage in the legal process,” and thus was not eligible for equitable tolling.

Conroy v. Thompson, 929 F.3d 818, 821 (7th Cir. 2019)

(Barrett, J.).

The Sixth Circuit has likewise come to a contrary

conclusion from the Fourth Circuit. Watkins v. Deangelo-Kipp held that a habeas petitioner could not

1 The First Circuit’s decision concerned whether equitable tolling

of the AEDPA statute of limitations applied. See Riva, 615 F.3d

at 37. The Fourth Circuit below held that equitable tolling and

Rule 60(b)(6) were inextricably intertwined, deciding to “collapse

the Rule 60(b)(6) and equitable tolling ‘extraordinary circumstances’ inquiries for the purpose of [its] analysis.” App. 30a. Decisions concerning the “extraordinary circumstances” component

of equitable tolling are thus directly relevant here.

14

establish that his mental impairments “caused his untimely filing” to warrant equitable tolling where he

had timely raised ineffective assistance of counsel

claims in state court and filed pro se pleadings during

the limitations period. 854 F.3d 846, 851 (6th Cir.

2017). The court held that the fact “[t]hat he was able

to make these timely filings indicates that his mental

illness was not the cause of his untimely amended habeas petition.” Id. at 852 (emphasis in original) (reversing the district court and dismissing the petition).

The Tenth Circuit also aligns with the Sixth and

Seventh Circuits, in contrast to the First and Fourth.

In Biester v. Midwest Health Services, Inc., the plaintiff argued that his mental incapacity should toll the

statute of limitations to file his Title VII claim. 77

F.3d 1264, 1267 (10th Cir. 1996). The court, however,

held that “in spite of his mental condition, [the petitioner] was capable of pursuing his own claim” given

that he corresponded with the EEOC and his attorney

and delivered notice during the tolling period. Id. at

1268 (quotation marks omitted). Those actions

demonstrated that “his mental condition simply does

not rise to the level of the mental incapacity contemplated by the courts that have tolled the [] limitations

period as a result of such incapacity.” Ibid. The Tenth

Circuit has applied the same standard in the habeas

context. See Smith v. Saffle, 28 Fed. Appx. 759, 760

(10th Cir. 2001) (“This court has held that [exceptional] circumstances are not present where the party

urging tolling has been able to pursue legal action

during the period of his or her alleged incapacity.” (citing Biester, 77 F.3d at 1268)).

The Fourth Circuit’s holding also conflicts with unpublished decisions in the Second and Fifth Circuits.

See Rios v. Mazzuca, 78 Fed. Appx. 742, 745 (2d Cir.

15

2003) (habeas petitioner was ineligible for equitable

tolling when, during the tolling period, he filed a complaint against his state court judge, wrote requests for

transcripts of his sentencing hearing, and filed Freedom of Information Law and Act requests, indicating

“that he was, to some extent, capable of investigating

and pursuing legal avenues”); Jones v. Stephens, 541

Fed. Appx. 499, 505 (5th Cir. 2013) (holding that “the

record makes clear that regardless of any mental illness, [the petitioner] has pursued, without assistance

of counsel, both state and federal habeas relief”).

2. The Fourth Circuit also held that where a habeas petitioner has been diagnosed with a “lifelong illness,” he need not provide evidence of the mental illness’s effects during the limitations period itself to

show that “extraordinary circumstances” warrant reopening the judgment and equitably tolling AEDPA’s

statute of limitations. App. 33a. In so doing, it widened a circuit conflict.

The Third, Ninth, and Eleventh Circuits have similarly held that evidence during the limitations period

is unnecessary. The Third Circuit has held that a petitioner was entitled to an evidentiary hearing on equitable tolling even though “there was no evidence in

the record that [the petitioner’s] current mental status affected his ability to present his habeas petition.”

Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), overruled in part on other grounds by Carey v. Saffold, 536

U.S. 214 (2002). Rather, because the petitioner was

pro se, “and because he has presented evidence of ongoing, if not consecutive, periods of mental incompetency,” an evidentiary hearing was warranted on the

issue. Ibid.

The Ninth Circuit has similarly held that, even

when the statute of limitations ran during “a period

16

for which no medical records have been offered by either [the petitioner] or the respondent,” an evidentiary hearing was required to determine “how much,

if any, of the [limitations] period [] should be equitably

tolled by virtue of [the petitioner’s] mental incompetence.” Laws v. Lamarque, 351 F.3d 919, 923–25 (9th

Cir. 2003).

Likewise, the Eleventh Circuit held that the petitioner had provided sufficient evidence “to raise a factual issue as to whether a causal connection exists between his mental impairment and his ability to file a

timely § 2254 petition” because a mental expert testified that his impairment was “significant and irreversible” and so an earlier-in-time expert report “remains probative of [the petitioner’s] mental impairment as to the § 2254 petition during the limitations

period and beyond.” Hunter v. Ferrell, 587 F.3d 1304,

1309 (11th Cir. 2009).

These holdings conflict with the holdings of other

circuits on the same question. For example, the Sixth

Circuit has rejected the argument that evidence of

mental illness prior to the limitations period is sufficient. In Watkins, the petitioner filed an untimely habeas petition after his limitations period ran, and

sought equitable tolling on the basis of mental incompetence. 854 F.3d at 851. The petitioner cited as evidence his mental-illness diagnosis two years before

the limitations period, among other points. But the

Sixth Circuit rejected that argument because the petitioner “present[ed] no evidence of his mental health

status during the limitations period.” Ibid. And it rejected the argument that the petitioner’s earlier mental health diagnosis carried over into the limitations

period, observing that “mental illness is not the same

as mental incompetence,” and that the petitioner had

17

thus failed to show that “any alleged incompetency

caused his untimely filing.” Id. at 852. 2

Similarly, the Seventh Circuit has held that petitioners with chronic mental illnesses cannot show “extraordinary circumstances” to justify equitable tolling

absent “evidence of [their] mental disability” and how

it affected their ability to meet the filing deadline for

their federal habeas petition during “the relevant time

period.” Mayberry v. Dittman, 904 F.3d 525, 530–31

(7th Cir. 2018). In that case, the court rejected the petitioner’s reliance on evidence of mental illness from

outside the tolling period, holding that it failed to

“shed[] light on the relevant time period for purposes

of tolling,” and that the petitioner had “fail[ed] to

point to anything specific transpiring between the filing of his unexhausted petition” and the expiration of

his tolling period that “interfered with his ability to

understand or pursue his habeas claim.” Id. at 530–

31.

Likewise, the Tenth Circuit has held that a petitioner failed to present extraordinary circumstances

warranting equitable tolling based on “mere allegations of incompetency at the time of his [guilty] pleas.”

2 The Fourth Circuit below identified the Sixth Circuit as agreeing with its view on the propriety of “earlier and later medical

records provid[ing] evidence of [the petitioner’s] mental functioning during the relevant period.” App. 33a (citing Ata v. Scutt, 662

F.3d 736, 743–44 (6th Cir. 2011)). But in Ata, the Sixth Circuit

remanded for an evidentiary hearing because the petitioner presented concrete allegations that he was “incapacitated for the period in question” due to being hospitalized and medicated for paranoid schizophrenia, and the medical records were not inconsistent with these claims. 662 F.3d at 743. In Watkins, the Sixth

Circuit cited Ata in holding that a “blanket assertion of mental

incompetence is insufficient” for equitable tolling. Watkins, 854

F.3d at 852 (quoting Ata, 662 F.3d at 742).

18

Fisher v. Gibson, 262 F.3d 1135, 1145 (10th Cir. 2001).

Because that alleged incompetency “significantly predate[d]” the limitations period, the petitioner was not

entitled to an evidentiary hearing on equitable tolling.

Ibid. The Fourth Circuit’s holding also conflicts with

an unpublished decision in the Eighth Circuit. See

Collins v. Scurr, 230 F.3d 1362, at *1 (8th Cir. 2000)

(table) (rejecting equitable tolling based on “bald and

unsupported assertions” that related to “an instance

of alleged mental incompetency that occurred at a

time remote to [the petitioner’s] § 2254 petition filing

deadline” (cleaned up)).

This Court should grant the petition to resolve the

split in authority among the circuits as to the correct

standard for when mental illness constitutes an “extraordinary circumstance” that justifies reopening the

judgment on a federal habeas petition under Rule

60(b)(6) or equitable tolling.

II. The question presented is important

The question of when a habeas petitioner’s mental

condition provides grounds to reopen a final judgment

and toll the statute of limitations is an important

question of federal law. Countless habeas petitioners

have mental-health conditions and fail to comply with

AEDPA’s statute of limitations. The Fourth Circuit’s

lax standard for reopening thus creates a massive

loophole to AEDPA’s strict time limits, deeply undermining the finality of criminal convictions in state

courts. The ruling below will also create enormous

burdens for both States and district courts, by mandating evidentiary hearings to determine whether

sometimes decades-old proceedings should be reopened, with little required showing from habeas petitioners.

19

It is indisputable that a significant percentage of

habeas petitioners have mental health conditions.

See, e.g., U.S. Dept. of Justice, Community Oriented

Policing Services Dispatch Volume 15, Mental Health

and Reentry: How Court Services Offender Agency

Meets the Challenge of Mental Health Community Supervision (May 2022), available at https://tinyurl.com/4xz9anss (noting that “64 percent of jail inmates, 54 percent of state prisoners, and 45 percent of

federal prisoners have reported mental health concerns” (citation omitted)). Large numbers of habeas

petitioners also fail to comply with AEDPA’s statute

of limitations and seek equitable tolling to excuse that

noncompliance. See, e.g., Mental incompetency and

physical disabilities, Federal Habeas Manual

§ 9A:107 (collecting cases); see also Equitable tolling—Extraordinary

circumstances—Mental and

physical disabilities of the petitioner, Postconviction

Remedies § 25:45 (collecting cases). The decision below thus creates a large loophole that will frequently

render AEDPA’s strict time limits effectively meaningless. And it will frequently require highly burdensome evidentiary hearings on reopening habeas petitions untimely filed several years earlier, and challenging convictions that are many years or even decades old.

This overly lax standard undermines States’ fundamental interest in the finality of their criminal convictions. Indeed, as the dissent below noted, this

Court has “required a movant seeking Rule 60(b)(6)

relief to establish ‘extraordinary circumstances’ as a

means of preserving the finality of judgments.” App.

41a (Niemeyer, J., dissenting) (citing Gonzalez v.

Crosby, 545 U.S. 524, 535 (2005)). Finality of state

convictions is an “important value[],” Stutson v.

United States, 516 U.S. 193, 197 (1996), that serves

20

“goals important to our system of criminal justice and

to federalism,” Kuhlmann v. Wilson, 477 U.S. 436, 453

n.16 (1986). By interpreting Rule 60(b)(6) to provide

“a grand reservoir of equitable power to do justice in a

particular case,” App. 37a, rather than confining it to

the exceedingly narrow circumstances in which Congress intended the rule to operate, the Fourth Circuit’s holding here undermines the “finality that is essential to both the retributive and deterrent functions

of criminal law,” Shinn v. Ramirez, 596 U.S. 366, 391

(2022) (cleaned up). Notably, the ruling here “prolong[s] a habeas case” that was untimely filed almost

ten years ago, and that challenges a state-court murder conviction entered sixteen years ago. Id. at 390

(cleaned up).

The Fourth Circuit’s order, if left uncorrected, also

tramples on the federal system carefully laid out in

our Constitution. Federal habeas review “overrides

the States’ core power to enforce criminal law.” Id. at

376. In so doing, it “intrudes on state sovereignty to a

degree matched by few exercises of federal judicial authority,” Harrington v. Richter, 562 U.S. 86, 103

(2011), and in a way that “imposes special costs on our

federal system,” Engle v. Isaac, 456 U.S. 107, 128

(1982). Most relevant here, “a federal order to retry or

release a state prisoner overrides the State’s sovereign power to enforce ‘societal norms through criminal

law.’” Shinn, 596 U.S. at 376 (quoting Calderon v.

Thompson, 523 U.S. 538, 556 (1998)). Only with “real

finality” can “the victims of crime move forward knowing the moral judgment will be carried out.” Calderon,

532 U.S. at 556. “To unsettle these expectations is to

inflict a profound injury to the powerful and legitimate interest in punishing the guilty, an interest

shared by the State and the victims of crime alike.”

Ibid. (quotation marks and citation omitted).

21

Accordingly, this Court repeatedly has affirmed

the importance of federal courts’ “enduring respect for

the State’s interest in the finality of convictions that

have survived direct review within the state court system.” Id. at 554 (cleaned up) (citation omitted). In addition to being “essential to both the retributive and

the deterrent functions of criminal law,” finality “enhances the quality of judging,” and serves “to preserve

the federal balance.” Id. at 555. Overturning state

criminal decisions on federal habeas review undermines “both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights[.]” Murray v. Carrier, 477 U.S. 478,

487 (1986) (cleaned up) (citation omitted). AEDPA

sets forth carefully limited time periods for federal habeas challenges to state convictions in order to constrain this federal intrusion into a core area of state

sovereignty. Shinn, 596 U.S. at 377. By creating a

large and ill-defined exception to those time limits,

the ruling below deeply upsets the balance that

AEDPA struck, and threatens the finality of untold

numbers of convictions.

Further, while the import of the ruling below for

habeas litigation is highly troubling, it may not be limited to that context. The Fourth Circuit’s ruling sets

the standard necessary to establish that mental illness constitutes “extraordinary circumstances” to justify Rule 60(b)(6) relief. Rule 60(b) motions are filed in

every type of federal civil proceeding, including bankruptcy, admiralty, condemnation, and forfeiture, as

well as habeas actions. 11 Wright & Miller, Federal

Practice & Procedure § 2852. Thus, in the Fourth Circuit, any party can now attempt to reopen a judgment

through a Rule 60(b)(6) motion based solely on a single diagnosis of a “lifelong” mental illness. Although

the interest in finality is particularly acute for federal

22

habeas review of state criminal convictions, the

Fourth Circuit’s ruling threatens the finality of many

other judgments as well.

The petition should be granted because it raises an

“important question of federal law.” S. Ct. R. 10.

III. The Fourth Circuit is incorrect

This Court should also grant review because the

Fourth Circuit below joined the incorrect side of the

circuit split. The Fourth Circuit held that “[i]n the habeas context . . . a petitioner’s mental impairment is

sufficiently profound [to toll the limitations period] if

it renders him unable to comply with the filing deadline,” rejecting the higher standard that would require

“institutionalization or adjudged mental incompetence.” App. 31a–32a. This capacious understanding

of extraordinary circumstances to obtain Rule 60(b)(6)

relief and equitable tolling flies in the face of this

Court’s precedents.

The writ of habeas corpus is an “extraordinary

remedy” that guards only against “extreme malfunctions in the state criminal justice systems.” Harrington, 562 U.S. at 102. “To ensure that federal habeas

corpus retains its narrow role, AEDPA imposes several limits on habeas relief.” Shinn, 596 U.S. at 377.

One of these limits is AEDPA’s strict one-year time

limit for filing a federal habeas petition. 28 U.S.C.

§ 2244(d). Congress “enacted AEDPA to reduce delays

in the execution of state and federal criminal sentences.” Woodford v. Garceau, 538 U.S. 202, 206

(2003). Thus, this Court has held that the AEDPA

statute of limitations may be equitably tolled—but

only under quite extraordinary circumstances. See

Holland v. Florida, 560 U.S. 631, 651–52 (2010).

These extraordinary circumstances must have “stood

23

in [the petitioner’s] way” and “prevented timely filing.” Id. at 649 (quotation marks omitted).

On top of the “extraordinary circumstances” necessary to establish equitable tolling, Rule 60(b)(6) requires “extraordinary circumstances” of its own before

reopening a final judgment. See Gonzalez, 545 U.S. at

535. Yet “strangely and without any statutory authority,” the Fourth Circuit concluded that it was appropriate to “collapse” the “extraordinary circumstances”

inquiry that must be conducted before a Rule 60(b)(6)

motion can be granted “with the distinctly different

analysis required for determining whether Justus’s

habeas petition was timely filed under” AEDPA. App.

40a (Niemeyer, J., dissenting). Although Rule 60(b)(6)

and equitable tolling standards share the requirement of showing “extraordinary circumstances,” see

Holland, 560 U.S. at 631; Gonzalez, 545 U.S. at 535,

“it is legal error to simply conflate them” as the Fourth

Circuit did, App. 41a (Niemeyer, J., dissenting). Such

collapsing “fails utterly to recognize that while the ‘extraordinary circumstances’ element required for

showing equitable tolling focuses on the reason why a

party failed to satisfy a particular filing deadline,”

this Court “has required a movant seeking Rule

60(b)(6) relief to establish ‘extraordinary circumstances’ as a means of preserving the finality of judgments.” App. 41a (Niemeyer, J., dissenting) (citing

Gonzalez, 545 U.S. at 535).

If habeas petitioners could use Rule 60(b)(6) to reopen a judgment and equitably toll the statute of limitations anytime their mental illnesses render them

unable to comply with the filing deadline because they

cannot “understand the need to timely file,” App. 32a,

even though a court would determine them to be mentally competent and even though they are not

24

institutionalized, then “extraordinary circumstances”

would become ordinary indeed. But equitable tolling

“is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of

affairs.” Wallace v. Kato, 549 U.S. 384, 396 (2007).

And extraordinary circumstances justifying a reopening of proceedings “will rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535. This “very strict interpretation of Rule 60(b) is essential if the finality of

judgments is to be preserved.” Ibid. (quoting Liljeberg

v. Health Servs. Acquisition Corp., 486 U.S. 847, 864

(1988) (Rehnquist. C.J., dissenting)).

The Fourth Circuit’s adoption of this lenient standard was incredibly consequential. Despite the fact

that this Court has made clear that “Rule 60(b) proceedings are subject to only limited and deferential appellate review,” ibid. (emphasis added), the panel majority “r[ode] roughshod over the district court’s findings,” App. 40a (Niemeyer, J., dissenting), to hold that

Justus was entitled to an evidentiary hearing on

whether his judgment should be reopened through equitable tolling because he did not understand the need

to file timely. It held that Justus’s five year-delay in

filing his Rule 60(b)(6) motion was “reasonable” because of the “extensive evidence documenting [his] severe mental disabilities.” App. 28a. And it observed

that Justus “has provided evidence strongly suggesting that he lacks the ability to timely file a habeas petition during periods of nontreatment.” App. 35a. This

“clearly tramples the notion of a ‘limited and deferential appellate review.’” App. 42a (Niemeyer, J., dissenting) (quoting Gonzalez, 545 U.S. at 535). And it

would have never happened through the application

of the proper standard.

25

And, even under its own terms, the Fourth Circuit

was incorrect. As the dissent noted, “[t]he record

simply does not show—and, indeed, is inconsistent

with finding—that Justus’s substantial delay in filing

his federal habeas petition can be justified on the

ground that he was mentally incapable of timely filing

that petition.” App. 42a (Niemeyer, J., dissenting). Remarkably, the panel “totally overlook[ed] the gap in

evidence by pointing to Justus’s medical records from

before 2009, projecting them forward without any basis for concluding that they were applicable to the

[limitations] period.” App. 42a–43a (Niemeyer, J., dissenting). The court did so “simply by emphasizing the

severity of Justus’s pre-2009 condition and hypothesizing that it debilitated Justus during the relevant

period—despite the fact that, during the same period,

Justus had pursued his ineffective assistance of counsel claim with multiple filings and letters, thus

demonstrating that he was indeed also capable of filing a federal habeas petition but simply failed to do

so.” App. 45a (Niemeyer, J., dissenting).

CONCLUSION

This Court should grant the petition.

26

December 13, 2023

Respectfully submitted,

JASON S. MIYARES

Attorney General

of Virginia

ANDREW N. FERGUSON

Solicitor General

Counsel of Record

M. NICOLE WITTMAN

Deputy Attorney

General

ERIKA L. MALEY

Principal Deputy Solicitor

General

RICK W. EBERSTADT

Assistant Solicitor

General

KEVIN M. GALLAGHER

Deputy Solicitor

General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

aferguson@oag.state.va.us

Counsel for Petitioner