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

APPENDIX

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

TABLE OF CONTENTS

Appendix A: Published Panel Opinion of the United

States Court of Appeals for the Fourth Circuit (August

15, 2023) ................................................................... 1a

Appendix B: Memorandum Opinion of the United

States District Court for the Western District of

Virginia (June 6, 2014)........................................... 51a

Appendix C: Order of the United States District Court

for the Western District of Virginia on Motion for

Reconsideration (February 28, 2020) .................... 56a

1a

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

No. 20-6351

BERMAN JUSTUS, JR.,

Petitioner - Appellant,

v.

HAROLD W. CLARKE,

Respondent - Appellee.

Appeal from the United States District Court for

the Western District of Virginia, at Roanoke.

Norman K. Moon, Senior District Judge. (7:13-cv00461-NKM-JCH)

Argued: May 3, 2022

Decided: August 15, 2023

Before, NIEMEYER, GREGORY, and HARRIS,

Circuit Judges.

Reversed and remanded by published opinion.

Judge Gregory wrote the opinion, in which Judge

Harris joined. Judge Niemeyer wrote a dissenting

opinion.

ARGUED: Kelly A. Warlich, MCGUIREWOODS

LLP, Charlotte, North Carolina, for Appellant.

Rohiniyurie

Tashima,

OFFICE

OF

THE

2a

ATTORNEY GENERAL OF VIRGINIA, Richmond,

Virginia, for Appellee. ON BRIEF: Mark R.

Herring, Attorney General, K. Scott Miles, Deputy

Attorney General, Michelle S. Kallen, Solicitor

General, Brittany M. Jones, Deputy Solicitor

General, A. Anne Lloyd, Deputy Solicitor General,

Laura H. Cahill, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF

VIRGINIA, Richmond, Virginia, for Appellee.

GREGORY, Circuit Judge:

In November 2003, Berman Justus, Jr.

shot and killed his estranged wife, Amanda

Justus, in the front seat of her car while their fouryear-old son sat in the back. As part of the same

incident, Justus also shot and killed Amanda’s

boyfriend, Joe White. Justus was charged with

capital murder, among other charges. The trial

court rejected Justus’s insanity defense but cited

his “severe mental illness” as a mitigating factor in

declining to impose the death penalty.

Justus subsequently attempted to collaterally

attack his 2007 convictions and sentence in state

court. After his state habeas petitions were

dismissed, Justus sought habeas relief in federal

court. The district court dismissed Justus’s 2013

federal habeas petition as untimely and for failure

to present any arguments in support of equitable

tolling.

Five years later,

reconsideration of the

Justus moved for

petition’s dismissal

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pursuant to Federal Rule of Civil Procedure 60(b)

on the ground that his “multiple mental health

disabilities . . . had prevented him from effectively

petitioning the court for habeas relief.” J.A. 238.

The district court dismissed Justus’s Rule 60(b)

motion and this appeal followed. We issued a

certificate of appealability, which noted that

Justus’s Rule 60(b) motion was timely. For the

reasons that follow, we reaffirm that Justus’s Rule

60(b) motion was timely filed and find that he is

entitled to an evidentiary hearing on whether his

mental illness during the relevant period entitled

him to relief under Rule 60(b)(6) and equitable

tolling of the statute of limitations governing his

habeas petition.

I.

Following his arrest for the murders of his

ex-wife and her boyfriend, Justus was twice found

incompetent to stand trial, and was twice admitted

to Central State Hospital for treatment to restore

his competency. He was first admitted from April

21, 2004, to October 5, 2004, and then again from

November 20, 2005, to June 1, 2006. There he was

diagnosed with Schizoaffective Disorder, but this

diagnosis was later changed to Bipolar Disorder

(Most Recent Episode Mixed, with Psychosis).

These two diagnoses are functionally similar, and

psychosis is a symptom of both conditions.

On January 23, 2007, after a bench trial, the

Circuit Court of Greene County, Virginia convicted

Justus of capital murder, using a firearm while

committing capital murder, shooting into an

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occupied vehicle, first-degree murder, and using a

firearm while committing murder. He was

sentenced to two life terms plus eighteen years.

Justus argued at trial that he was acting on the

delusion that God commanded him to kill his exwife and her boyfriend. The court rejected Justus’s

insanity defense but at sentencing cited his “severe

mental illness . . . at some point during the period

of these offenses” and his “complete lack” of

“criminal history” or a “history of violence” to

explain its decision to impose a life sentence rather

than death. J.A. 182

Following his 2007 conviction, Justus

received mental health treatment from the

Department of Corrections between, at least, May

2007 and August 2008. The treatment record from

this interval describes periods of noncompliance

with treatment during which Justus experienced

depression and psychotic symptoms as well as

hypervigilance. Justus later resumed treatment

between April and August 2016 after an unspecified

period of time without receiving treatment. 1 The

record includes no treatment records between

September 2008 and April 2016 or after August

2016, but it includes two 2019 affidavits from

Justus and his mother which purport, in part, to

describe his mental state between January 2007

1 An April 2016 doctor’s note states that Justus, who

was “new to [River North Correctional Center],” “has been off

meds much more than on meds.” J.A. 225. It further notes

that “he has been incarcerated since 2007 and has not been

in mental health treatment” even though the record includes

treatment records from 2007–2008. Id.

5a

and January 2009. In his affidavit, Justus

explains that he has “in[s] and outs,” which he

defines as “time periods where I’m dealing with

things in a present sense and times when I’m not,”

and that he “can get stressed and have to push

everything away.” J.A. 185–86.

Justus filed a timely appeal challenging the

Circuit Court’s rejection of his insanity defense,

which the Court of Appeals of Virginia denied on

November 30, 2007. In support of its ruling, the

Court of Appeals cited contradictory testimony

given by Justus on the day he was arrested that “he

denied having a sense of purpose to kill Justus and

White” and that “he had shot [his wife] because she

was keeping their son from him.” J.A. 42–43. The

Court of Appeals also cited the testimony of two trial

experts, neither of whom was willing to opine that

Justus was insane at the time of the killings. Dr.

Evan Nelson stated that he believed that Justus

had not become psychotic until after the murders,

and Dr. William Stejskal explained that he

thought Justus exhibited features of psychosis at

the time of the offenses but had no opinion on the

subject “to a reasonable degree of professional

certainty.” J.A. 41. Because eighteen pages of the

trial transcript were missing, including the portion

of the transcript in which Justus described the

delusion he claims caused him to kill his victims,

the court did not consider Justus’s testimony

regarding his delusion.

No subsequent appeal was filed in the

Supreme Court of Virginia. On May 26, 2008,

Justus’s counsel, J. Lloyd Snook, III, sent him a

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letter explaining that the Court of Appeals had

denied his appeal in part because of the eighteen

missing transcript pages and apologizing for failing

to timely inform him of “the problem.” J.A. 54.

Snook also revealed that although he had prepared

a petition for appeal of Justus’s conviction to the

Supreme Court on December 23, 2007, and

arranged for his paralegal to mail it, he had

discovered that the petition was never filed. Snook

explained that the paralegal’s employment ended

in January 2008 and that he did not become aware

of the oversight until May 2008. As confirmed by

prison mail records, Justus never received this

letter.

On May 18, 2010, Justus filed a bar

complaint against his attorney for failing to

include the missing transcript pages and failing to

inform him that his appeal had been dismissed.

Only after filing his bar complaint did Justus

become aware of Snook’s 2008 letter. The bar

dismissed his complaint because it found that

Snook had “explained fully” each of the concerns.

J.A. 51. Justus filed a second bar complaint in

January 2012, but the bar again declined to take

further action. The record includes a March 2012

affidavit from Snook admitting responsibility for

failing to perfect Justus’s appeal to the Supreme

Court of Virginia and explaining that he did not

consult with Justus regarding the appeal “[b]ecause

of [Justus’s] mental state and the difficulties in

communicating with him.” J.A. 109–10.

Meanwhile, on November 17, 2010, Justus

filed a pro se state habeas petition. It was

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dismissed as untimely, and Justus did not appeal.

Justus filed a second pro se state habeas petition

on June 28, 2012, which was again denied, and the

Supreme Court of Virginia denied his petition for

appeal on June 20, 2013.

Justus then filed a pro se 28 U.S.C. § 2254

petition dated September 24, 2013, alleging

ineffective assistance of counsel based on his

counsel’s failure to perfect his 2007 appeal to the

Supreme Court. The district court advised Justus

that his petition appeared untimely and requested

additional argument or evidence regarding its

timeliness. Justus responded to the order but did

not address the court’s timeliness concern. On June

6, 2014, the court dismissed Justus’s petition. The

court explained that even excluding the periods

during which Justus’s state habeas petitions were

pending, 2 his filing delay exceeded the applicable

one-year period. Specifically, the district court

found that the federal statute of limitations for

Justus’s federal habeas petition ran (1) from May

18, 2010, to November 17, 2010; (2) from March 30,

2011, to June 28, 2012; and (3) from June 20, 2013,

to September 24, 2013. Thus, the district court

found that the statute of limitations clock on

Justus’s federal habeas petition ran for 735 days—

370 days longer than the one-year statute of

limitations. Since Justus had “not demonstrated

any grounds for equitable tolling,” the court found

that his petition was time-barred. J.A. 163.

2 In applying statutory tolling to Justus’s state habeas

petitions, the court made several assumptions in Justus’s

favor, including that both state petitions were properly filed.

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Five years later, in August 2019, Justus

filed a pro se Rule 60(b) motion for reconsideration

of the dismissal of his federal habeas petition on the

basis that his mental illness had prevented him from

filing it timely. In support of this motion, he

provided treatment records and an affidavit. The

district court denied the motion on February 28,

2020. 3 The court explained that Justus was

required to make a showing of “extraordinary

circumstances” to qualify for Rule 60(b)(6) relief,

J.A. 239, but found “that he has not made the kind

of ‘extraordinary’ showing to entitle him to

equitable tolling.” J.A. 241.

Justus appealed on March 12, 2020. In an

order dated September 24, 2020, we granted a

certificate of appealability (COA) concerning

“whether Justus should be entitled to equitable

tolling regarding his habeas petition.” Order 1,

Sept. 24, 2020, ECF No. 11. We also found that

Justus’s Rule 60(b) motion was timely, despite the

five-year period between the district court’s habeas

decision and the motion, “[g]iven the extensive

evidence documenting Justus’s severe mental

disabilities.” Id.

II.

We begin by addressing some confusion

regarding the procedural posture of this case and

the proper standard of review for us to apply. Both

3 The district court only considered the motion under

subsection (6) of Rule 60(b) because it was “the only

subsection Justus appears to invoke.” J.A. 239.

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parties here failed to recognize that the appropriate

standard of review is the standard applicable to

denials of Rule 60(b) motions, not the standard

applicable to a direct appeal of a district court’s

denial of equitable tolling. To be fair, our previous

order granted a COA as to the issue: “whether

Justus should be entitled to equitable tolling

regarding his habeas petition.” 4 Id. The briefing

from both parties, therefore, understandably

explored this issue. But we are not omnipotent,

and our framing of the COA does not change the

procedural posture of this case. Accordingly, we

review a district court’s denial of a Rule 60(b)

motion for abuse of discretion. Browder v. Dir.,

Dep’t of Corrs. of Ill., 434 U.S. 257, 263 n.7 (1978).

III.

A federal habeas petitioner may be entitled

to equitable tolling of the one-year statute of

limitations established in the Antiterrorism and

Effective Death Penalty Act (AEDPA) “where—due

to circumstances external to the party’s own

conduct—it would be unconscionable to enforce the

limitation period against the party and gross

injustice would result.” United States v. Sosa, 364

F.3d 507, 512 (4th Cir. 2004). To establish grounds

for equitable tolling, a petitioner must show “(1)

that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance

4 The

district court similarly identified “[t]he issue

now before” it as “whether [Justus] was entitled to

equitable tolling as a result of his mental condition.” J.A.

240.

10a

stood in his way and prevented timely filing.”

Holland v. Florida, 560 U.S. 631, 649 (2010)

(emphasis added and cleaned up). “The diligence

required for equitable tolling purposes is

reasonable diligence, not maximum feasible

diligence.” Id. at 653 (cleaned up). And “under our

existing ‘extraordinary circumstances’ test, [a

petitioner] is only entitled to equitable tolling if he

presents (1) extraordinary circumstances, (2)

beyond his control or external to his own conduct,

(3) that prevented him from filing on time.” Rouse

v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). We

review a district court’s denial of equitable tolling

in the habeas context for an abuse of discretion

unless the relevant facts are undisputed, in which

case we review the decision de novo. Id. at 247–48.

And we review a district court’s decision not to

hold an evidentiary hearing in a post-conviction

proceeding for an abuse of discretion. Crockett v.

Clarke, 35 F.4th 231, 245 n.6 (4th Cir.2022) (citing

Gordon v. Braxton, 780 F.3d 196, 204 (4th Cir.

2015)).

Justus filed his Rule 60(b) motion seeking

reconsideration of the denial of his habeas petition

where the court concluded he made no argument

for equitable tolling of the AEDPA statute of

limitations. Rule 60(b)(6) “provides the court with

a grand reservoir of equitable power to do justice in

a particular case.” Reid v. Angelone, 369 F.3d 363,

374 (4th Cir. 2004) (quoting Eberhardt v.

Integrated Design & Constr., Inc., 167 F.3d 861,

872 (4th Cir. 1999)). And we have explained that

“there are strong equitable considerations favoring

[Rule 60(b)] motions in habeas cases, given the

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stringent requirements a prisoner must satisfy to

file a successive habeas application.” Id.

“Rule 60(b) allows a court to ‘relieve a party

. . . from a final judgment, order or proceeding’ on a

limited number of grounds.” Wells Fargo Bank,

N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295,

299 (4th Cir. 2017) (quoting Fed. R. Civ. P.

60(b)). “To prevail, a party must first demonstrate

(1) timeliness, 5 (2) a meritorious defense, 6 (3) a lack

of unfair prejudice to the opposing party, 7 and (4)

5 “A motion under Rule 60(b) must be made within a

reasonable time—and for reasons (1), (2), and (3) no more

than a year after the entry of the judgment or order or the

date of the proceeding.” Fed. R. Civ. P. 60(c)(1) (emphasis

added).

6 We have explained that “[t]he underlying concern” of

this prong is “whether there is some possibility that the

outcome . . . after a full trial will be contrary to the result

achieved by the default.” Augusta Fiberglass Coatings, Inc.

v. Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988)

(emphasis added) (quoting 10 C. Wright, A. Miller & M.

Kane, Federal Practice and Procedure § 2697 (2d ed. 1983));

see also United States v. Harris, 268 F. Supp. 2d 500, 504

(E.D. Pa. 2003) (considering a Rule 60(b) motion in a habeas

case and explaining that a petitioner must show that

“vacating the judgment will not be an empty exercise.”

(quoting Teamsters, Chauffeurs, Warehousemen and Helpers

Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 20

(1st Cir. 1992)).

7 We have held, however, that this factor “is of lesser

importance.” Nat’l Credit Union Admin. Bd. v. Gray, 1 F.3d

262, 265 (4th Cir. 1993); see also Compton v. Alton Steamship

Co., 608 F.2d 96, 102 (4th Cir.1979) (“[T]he court should in

every case give some, though not controlling, consideration to

the question whether the party in whose favor judgment has

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exceptional circumstances.” Id. (citing Dowell v.

State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d

46, 48 (4th Cir. 1993)). Once a party has met this

threshold, he must then show that he qualifies for

relief under one of the six specific categories listed

in Rule 60(b). Dowell, 993 F.2d at 48. Two of these

categories are relevant to our analysis. The first

category provides relief in instances of “mistake,

inadvertence, surprise, or excusable neglect.” Fed.

R. Civ. P. 60(b)(1). The other is Rule 60(b)(6), a

“catch-all provision” that permits relief for “any

other reason that justifies relief.” Moses v. Joyner,

815 F.3d 163, 167–68 (4th Cir. 2016) (quoting Fed.

R. Civ. P. 60(b)(6)). Indeed, Rule 60(b)(6) “gives a

court authority to relieve a party from a judgment

for any other reason not articulated in sections (1)

through (5), but only when the movant

demonstrates extraordinary circumstances.” Wells

Fargo Bank, 859 F.3d at 299. The Supreme Court,

however, has limited the application of Rule

60(b)(6) to cases where “such action is appropriate

to accomplish justice,” Klapprott v. United States,

335 U.S. 601, 615 (1949), and that “involve[e]

extraordinary circumstances,” Dowell, 993 F.2d at

48 (citing Ackermann v. United States, 340 U.S.

193, 202 (1950)).

IV.

The district court denied Justus’s Rule 60(b)

motion because it found that “he ha[d] not made the

kind of ‘extraordinary’ showing to entitle him to

been entered will be unfairly prejudiced by the vacation of his

judgment.”).

13a

equitable tolling.” J.A. 241–42. In the alternative,

the court also explained in a footnote that it found

Justus’s Rule 60(b) motion untimely. J.A. 241 n.3

(“Justus has not shown or explained why it was

reasonable to file his motion more than five years

after his habeas petition was dismissed.”). Because

a party must demonstrate both timeliness and

“extraordinary circumstances” to prevail under

Rule 60(b)(6), either finding, if upheld, would

provide grounds for dismissing Justus’s motion.

Accordingly, we first address whether

Justus’s Rule 60(b) motion is time-barred. We

conclude that his motion was properly filed under

Rule 60(b)(6) and, therefore, need only have been

“made within a reasonable time.” Fed. R. Civ. P.

60(c)(1). As a result, we reaffirm our prior

conclusion that, “[g]iven the extensive evidence

documenting Justus’ severe mental disabilities,”

his Rule 60(b) motion was timely. Order 1, Sept.

24, 2020, ECF No. 11. Next, we conclude that an

evidentiary hearing is necessary to determine

whether Justus’s mental disabilities present

“extraordinary circumstances” warranting relief

under Rule 60(b)(6) and equitable tolling.

A.

Despite the five-year period between the

court’s dismissal of his petition and Justus’s Rule

60(b) motion, we previously entered an order

stating that “[g]iven the extensive evidence

documenting Justus’ severe mental disabilities, the

Court deems the Rule 60(b) motion to be timely.”

Order 1, Sept. 24, 2020, ECF No. 11. See generally

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Klapprott, 335 U.S. at 607–14 (finding a four-year

gap timely where the party was incarcerated, ill,

and lacked the ability to hire counsel). While our

order did not specify which subsection of Rule 60(b)

we found applicable to Justus’s motion, Justus

invoked subsection (6), and the district court

considered only that subsection in its analysis.

Thus, this Court’s determination that Justus’s

motion was timely was likely based on a finding

that Justus’s mental illness made his five-year

filing delay “reasonable” under Rule 60(b)(6). See

Fed. R. Civ. P. 60(c). We find it necessary, however,

to revisit our determination that Justus’s motion

was timely filed before we consider whether Justus

is entitled Rule 60(b) relief.

Following the May 3, 2022, oral argument in

this case, the Supreme Court decided Kemp v.

United States, 142 S. Ct. 1856 (2022). Kemp held

that “legal errors made by judges” are properly

addressed by Rule 60(b)(1). In response to that

decision, we instructed the parties to provide

supplemental briefing addressing the following

questions:

1) Whether, in light of Kemp v.

United States, 142 S. Ct. 1856

(2022), a petitioner’s motion to

reopen a district court’s dismissal

of his federal habeas petition as

untimely on the grounds that he is

entitled to equitable tolling due to

his mental illness is properly

classified as a Rule 60(b)(1) motion

or a Rule 60(b)(6) motion; and

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2) If petitioner’s motion is properly

classified as a Rule 60(b)(1)

motion, given the applicable oneyear maximum limitations period,

what impact does our prior

determination that his Rule 60(b)

motion is ‘deem[ed]’ timely,

including in our order granting a

certificate of appealability, have on

this Court’s consideration of

whether petitioner’s Rule 60(b)(1)

motion is timely.

ECF No. 68 at 2. Upon consideration of the parties’

arguments, we conclude that Justus’s motion is

properly classified as a Rule 60(b)(6) motion, and

accordingly reaffirm that the motion is timely filed.

1.

The Supreme Court held in Kemp that Rule

60(b)(6) provides an option for justifiable relief

that “is available only when Rules 60(b)(1)

through (b)(5) are inapplicable.” 142 S. Ct. at

1861 (citing Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847, 863 n.11 (1988)). The

timeliness of Justus’s Rule 60(b) motion depends

upon whether his motion is properly characterized

as a Rule 60(b)(1) motion or a Rule 60(b)(6) motion.

As noted above, Rule 60(b) requires that the motion

“be made within a reasonable time—and for

reasons (1), (2), and (3) no more than a year after

the entry of the judgment or order or the date of

the proceeding.” Fed. R. Civ. P. 60(c)(1). Thus, if

found to be a Rule 60(b)(1) motion, Justus’s motion

16a

is barred by a one-year statute of limitations, and

he may not, in the alternative, seek relief under

Rule 60(b)(6). But if the motion is properly

classified as a Rule 60(b)(6) motion, it is timely if

filed within a “reasonable” amount of time. See

Kemp, 142 S. Ct. at 1860.

Appellee Harold Clarke (“Clarke”) urges us

to find that Justus’s motion is time- barred. He

contends that Justus’s motion argues that “the

district court erred in ‘barr[ing]’ the ‘petition at

issue,’” Appellee’s Supp. Br. at 3, and that Kemp

“makes clear” that such a motion is properly

classified as a Rule 60(b)(1) motion because it

“sought relief from the judgment based on

‘mistake’ or ‘excusable neglect.’” Appellee’s Supp.

Br. at 1. And because Justus “could have” brought

his motion as a Rule 60(b)(1) motion, Rule 60(b)(6)

is inapplicable and his motion is untimely.

Appellee’s Supp. Br. at 8.

For his part, Justus argues that his Rule

60(b) motion is properly classified as a Rule 60(b)(6)

motion because it did not assert that the district

court erred in concluding that he was not entitled

to equitable tolling. He explains that evidence of

his mental illness entitling him to equitable tolling

was not before the district court until he filed the

Rule 60(b) motion. Thus, he contends, the motion

did not argue that the district court erred in its

prior order when it determined that he did not

demonstrate any grounds to support equitable

tolling. The motion instead argued that Justus’s

severe, ongoing mental illness had prevented him

from effectively presenting an equitable tolling

17a

argument. Accordingly, Justus argues that his

Rule 60(b) motion was properly construed as

arguing that an “extraordinary circumstance”—

Justus’s severe mental illness—justified relief

under Rule 60(b)(6). Following this view, this

Court is not bound by the one-year limitations

period applicable to Rule 60(b)(1) motions in

determining whether his Rule 60(b) motion was

timely filed. Appellant’s Suppl. Br. at 1.

To resolve this dispute, we address whether

Justus’s motion argues either “mistake” or

“excusable neglect” under Rule 60(b)(1).

2.

The terms “mistake, inadvertence . . . or

excusable neglect” found in Rule 60(b)(1) are often

used interchangeably or in conjunction with each

other. A “mistake” under Rule 60(b)(1) occurs

when “the judge has made a substantive mistake of

law or fact in the final judgment or order,” as well

as where “a party has made an excusable litigation

mistake.” Cashner v. Freedom Stores, Inc., 98 F.3d

572, 576 (10th Cir. 1996). Kemp recently

confirmed that the term “mistake” in Rule 60(b)(1)

includes all errors of law made by a judge,

including “misapplying controlling law to record

facts.” 142 S. Ct. at 1862 & n.2. In challenging such

an error, a petitioner “should . . . invoke[] Rule

60(b)(1), not (b)(6).” Blitch v. United States, 39

F.4th 827, 834 (7th Cir. 2022) (quoting Kemp, 142 S.

Ct. at 1862).

The Fourth Circuit has suggested that

18a

“neglect”

under

Rule

60(b)(1)

includes

“inadvertence, mistake, or carelessness, as well as

. . . intervening circumstances beyond the party’s

control.” e.spire Commcn’s, Inc. v. CNS Commcn’s,

39 F. App’x. 905, 912 n.7 (4th Cir. 2002) (quoting

Thompson v. E.I. DuPont de Nemours & Co., 76

F.3d 530, 533 (4th Cir. 1996)). And this Court has

defined “excusable” as “‘an equitable [inquiry],

taking account of all relevant circumstances

surrounding the party’s omission,’ including ‘the

danger of prejudice to the [nonmovant], the length

of the delay and its potential impact on judicial

proceedings, the reason for the delay, including

whether it was within the reasonable control of the

movant, and whether the movant acted in good

faith.’” Thompson, 76 F.3d at 533 (quoting Pioneer

Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507

U.S. 380, 395 (1993)). “The most important of

the[se] factors . . . for determining whether

‘neglect’ is ‘reasonable’” is the reason for the delay.

Id., 76 F.3d at 534.

Clarke argues that Justus’s motion alleges

either judicial error or his own mistake or

excusable neglect. We find that it does not.

a.

First, Clarke interprets Justus’s motion as

alleging that the district court made a judicial

mistake by dismissing his habeas petition as

untimely. According to Clarke, Justus contends in

his motion that “the district court erred in

‘barr[ing]’ the ‘petition at issue’ on the grounds

that ‘petitioner made no arguement [sic] to support

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equitable tolling of the statute of limitations,’”

Appellee’s Supp. Br. at 3 (citing J.A. 159), and

“[b]ecause he could have brought his motion as a

Rule 60(b)(1) motion on that ground,” his motion is

properly classified as such. Appellee’s Supp. Br. at

9–10 (emphasis in original).

But Clarke’s argument that Justus’s motion

alleges a judicial mistake misconstrues Justus’s

allegations. In no way does Justus state that the

district court “erred.” Rather he states that “a

prisoner’s failure to file within the specified time

must be excused if such failure was attributable to

a mental disability that impaired the prisoner’s

ability to recognize the basis for, or to take

advantage of, possible collateral remedies.” J.A.

159. He further contends that “[t]he petition . . .

was barred noting that petitioner made no

arguement [sic] to support equitable tolling of the

statute of limitations,” which “would require an

awareness of that time period that petitioner can’t

relay, a time period when anyone that had

involvement with him concurred that he was

symptomatic according to his disability.” Id. A

careful reading of Justus’s motion demonstrates

that it is not a statement intended to establish any

error on the part of the court.

Beyond the language of the motion itself,

Justus makes another compelling argument that

he did not move for Rule 60(b) relief on the ground

that the district court made a mistake of law in

denying him equitable tolling or in dismissing his

petition: the court’s ruling was not error based on

the record before it, which alleged no facts related

20a

to Justus’s mental illness.

When the district court issued its order

dismissing Justus’s petition, Justus had not

argued that his mental illness entitled him to

equitable tolling, nor was there any evidence in the

record to support that argument. That evidence

was submitted to the court for the first time when

Justus filed his Rule 60(b) motion. And it was in

this motion that Justus argued, again for the first

time, that he was entitled to equitable tolling due

to his mental illness. Thus, Justus’s Rule 60(b)

motion did not, and could not, present any

argument that the district made a mistake or error

of law when it first concluded that he was not

entitled to equitable tolling. In other words, the

court did not err in “overlook[ing] a material

argument” which would fall within the scope of

Rule 60(b)(1), see Blitch, 39 F.4th at 834, nor was

there any “misappl[ication]” by the district court of

“controlling law to record facts,” see Kemp, 142 S.

Ct. 1862 n.2.

Arguing for a contrary conclusion, Clarke

relies on two unpublished opinions from other

circuits. In Smith v. Johnson, No. 00-10019, 2001

WL 43520 at *1 (5th Cir. Jan. 3, 2001), the issue of

mental competence came before the district court

for the first time in the petitioner’s habeas

petition, where he asked the court to hold a

hearing on his “ability to totally understand the

written matter that presents itself here or the

conceptual matter involved with this cause.” Id.

The district court dismissed his petition as timebarred without holding a hearing. Id. The Fifth

21a

Circuit then construed petitioner’s subsequent

Rule 60(b) motion—where he argued that a

limitations period “should have been equitably

tolled because he is mentally incompetent”—as a

claim for relief under Rule 60(b)(1) based on a legal

mistake. That court denied relief because the

petitioner “failed to allege sufficient facts to

support his claim of incompetence” and

“[c]onsequently . . . never demonstrate[d] to the

district court that his claim of incompetence was

anything more than a bald assertion.” Id. at *2.

In the other case, the Sixth Circuit denied

the petitioner a certificate of appealability after the

district court denied his Rule 60(b)(1) motion.

Reynolds v. Nagy, No. 18-1942, 2018 WL

11303656, at *1 (6th Cir. Nov. 8, 2018). The court

rejected the petitioner’s argument that the district

court committed a legal mistake by finding he was

not entitled to equitable tolling on the grounds that

the petitioner, who had a learning disability, failed

to present evidence to demonstrate he was

mentally incompetent or that his incompetence

caused his untimely filing. Id.

Justus’s case is not analogous to either of

these cases. Unlike Smith and Reynolds where the

petitioners alleged errors by the district court,

Justus did not raise the issue of his mental illness

before the district court at all. And when he did

raise it—in his Rule 60(b) motion—he provided the

district court with evidence sufficient to document

his mental illness. This evidence was presented in

support of his equitable tolling argument, not to

show that the district court had previously made a

22a

“mistake” in determining sua sponte that he had

not stated grounds for equitable tolling.

In sum, based on the language of Justus’

motion and his failure to allege any “mistake” by

the district court, the motion should not be deemed

a Rule 60(b)(1) motion on those grounds.

b.

Second, Clarke asserts that Justus’s motion

is a Rule 60(b)(1) motion because “it is premised on

arguments

that

Justus’s

own

‘mistake,

inadvertence, . . . or excusable neglect[]’ justified

relief from judgment.” Appellee Supp. Br. at 10

(citation omitted). Here, too, we are unpersuaded.

When the district court ordered Justus in 2013 to

submit arguments on or evidence concerning why

“the petition should be deemed timely,” J.A. 116,

Justus’s response did not address the timeliness

issue at all, and the court dismissed his petition.

Justus contends in his motion that he was “diligent

in making effort to assert his rights,” but his mental

illness “would not allow him to generate [a]

competent petition himself.” J.A. 159. But Clarke

argues that whether Justus misunderstood the

court’s order or failed to comply with it due to his

mental issues, his motion to reopen judgment is an

“example of alleged litigant mistake or excusable

neglect due to ‘carelessness or . . . intervening

circumstances beyond the party’s control’” that

falls under Rule 60(b)(1) and its one-year

limitations period. Appellee’s Supp. Br. at 11

(citing Thompson, 76 F.3d at 533). We disagree, as

Clarke has failed to recognize the meaningful

23a

distinction between excusable neglect

“extraordinary circumstances” in this case.

and

As we have noted, our Circuit has held the

reason for a delay is “[t]he most important” factor

“for determining whether ‘neglect’ is ‘reasonable’”

under Rule 60(b)(1). See Thompson, 76 F.3d at 534.

But to justify relief under Rule 60(b)(6), “a party

must

show

‘extraordinary

circumstances’

suggesting that the party is faultless in the delay.”

Pioneer, 507 U.S. at 393 (citing Liljeberg, 486 U.S.

at 863 & n.11). This requires the petitioner to

demonstrate “an extraordinary situation which

cannot fairly or logically be classified as mere

‘neglect’ on his part” and that “reveal[s] far more

than a failure to defend . . . due to inadvertence,

indifference,

or

careless

disregard

of

consequences.” Id. (quoting Klapprott, 335 U.S. at

613). Conversely, “[i]f a party is partly to blame for

the delay, relief must be sought within one year

under subsection 1 and the party’s neglect must be

excusable.” Id. Inability to comply with a deadline

takes a situation “outside the scope of ‘excusable

neglect’ ‘because “neglect” in the context of its

subject matter carries the idea of negligence and

not merely of non-action.’” Id. (quoting Klapprott,

335 U.S. at 630 (Frankfurter, J., dissenting)).

“Thus, at least for purposes of Rule 60(b),

‘excusable neglect’ is understood to encompass

situations in which the failure to comply with a

filing deadline is attributable to negligence.

Because of the language and structure of Rule 60(b),

a party’s failure to file on time for reasons beyond

his or her control is not considered to constitute

‘neglect.’” Pioneer, 507 U.S. at 394 (emphasis

24a

added).

Unfortunately, Justus’s supplemental brief

does not address the applicability of excusable

neglect under Rule 60(b)(1) or how it is

distinguishable

from

“extraordinary

circumstances” that justify relief under Rule

60(b)(6). And Clarke mentions the potential

applicability of Rule 60(b)(6) only briefly, stating

that “[e]ven if a movant’s mental condition could

theoretically fall within the ambit of Rule 60(b)(6)

under certain ‘extraordinary circumstances’ not

covered by any other provision of Rule 60(b), as the

district court noted, Justus here ‘presented nothing

to explain his delay of more than five years in

filing his motion for reconsideration,’” and

“therefore failed to demonstrate that any

‘extraordinary circumstance warrants relief

here.’” 8 Appellee’s Supp. Br. at 12 n.3 (citing J.A.

239, 241 n.3).

But a close review of Justus’s motion

demonstrates that his claim for relief under Rule

8 Curiously, the district court reached this conclusion

even after acknowledging that Justus had been diagnosed

with “a number of mental health disorders, some of them

quite serious,” that psychologists for both the prosecution and

the defense testified that “at least after the offense, he was

suffering from a serious mental illness,” and that Justus

“was twice institutionalized to restore competency before

being required to stand trial.” J.A. 240. The court also

noted that although the trial court ultimately determined he

was not insane at the time of the offense, there was

“substantial evidence . . . that the defendant suffer[ed] from

some very serious mental health problems.” J.A. 240–41.

25a

60(b)(6) “did not rest on mere allegations of

‘excusable neglect.’” 335 U.S. at 613. It asserted an

“extraordinary circumstance”—his severe mental

illness—as justification for relief under Rule

60(b)(6).

First, beyond the caption of the motion itself

and its conclusion, both of which specifically

invoke Rule 60(b)(6), the motion, drafted by a

prison advocate, explains that making an

argument in support of equitable tolling “would

require an awareness of that time period that

petitioner can’t relay, a time period when anyone

that had involvement with him concurred that he

was symptomatic according to his disability,” and

that his “severe mental disability has directly

attributed to a complex tangle of legal issues that

has to be undone one knot at a time.” J.A. 159.

The motion concludes with a request to the court to

“undo the first knot by . . . [r]eviving his lost right

of appeal pursuant to Federal Rule 60(b)(6).” Id.

Given this Court’s duty to construe pro se filings

liberally, see Arakas v. Comm’r, 983 F.3d 83, 104

n.11 (4th Cir. 2020), these facts and allegations

support a finding that Justus intended to seek

relief under Rule 60(b)(6), not Rule 60(b)(1).

Second, if Clarke’s reliance on the Fifth

Circuit’s opinion in Smith v. Johnson is helpful at

all, it is because it establishes that “mental

incompetence, if sufficiently severe, may qualify as

an extraordinary circumstance that justifies

equitable tolling and relief from a judgment.” 2001

WL 43520, at *3. Here, Justus’s allegations of his

severe mental illness, if true, are sufficient “to

demonstrate that his condition was the type of

26a

extraordinary circumstance that merited equitable

tolling, and therefore Rule 60(b)(6) relief.” Id. at

*2.

As discussed infra, Justus was diagnosed

with a number of “quite serious” mental health

disorders. J.A. 240. Psychologists who evaluated

him on behalf of both the prosecution and the

defense agreed that “he was suffering from a

serious mental illness” after the offense. Id. In

fact, he was so mentally ill that “he was twice

institutionalized” to restore competency to stand

trial. Id. The court also noted that although he was

not insane, there was “substantial evidence . . .

that [Justus] suffer[ed] from some very serious

mental health problems.” J.A. 240–41.

Finally, and perhaps most importantly,

Justus’s prison advocate noted that “anyone that

had involvement with Justus concurred that he

was symptomatic according to his disability,” “his

disability would not allow him to generate [a]

competent petition himself,” “he could not

communicate,” and “[h]is severe mental disability

has directly attributed to [the] complex tangle of

legal issues” in which Justus finds himself. J.A.

159. In short, “[h]is severe mental disability”

“impaired [his] ability to recognize the basis for, or

to take advantage of, possible collateral remedies.”

Id. His advocate also noted that while he was

attempting to help Justus with his case, Justus

“immediately started to show signs of agitat[ion]

and stress until reaching a point that [he] could not

even speak to him about his legal issues.” J.A. 160.

But the advocate pressed on with Justus’s case “to

27a

keep [his] promise to help” and because he “d[id]

not want to fail [Justus] after he has been failed in

this matter at every level of review.” Id.

Unable to accept that reality, Clarke cites

two more unpublished, out-of-circuit, and factually

distinguishable authorities in support of his

argument that Justus’s delay in filing constituted

excusable neglect. See Flynn v. People’s Choice

Home Loans, Inc., 440 F. App’x 452, 457–58 & n.4

(6th Cir. 2011) (affirming denial of a Rule 60(b)(1)

motion arguing that due to petitioner’s “medical

condition”

(paranoid

schizophrenia)

and

prescription drug side effects, petitioner’s “mental

state was such that he did understand the rules or

court orders” because petitioner “[had] not

submit[ted] any proof that any medical ailments or

prescription medications affected his mental

capacity.”); Washington v. State Street Bank &

Trust Co., 14 F. App’x 12, 15 (1st Cir. 2001)

(affirming without explanation or analysis denial of

a Rule 60(b)(1) motion that was based on several

excuses for delay, including the petitioner’s

“mental difficulties.”). Neither case, however,

analyzes whether a delay in filing due to mental

illness constitutes “neglect” or an “extraordinary

circumstance” that justifies relief. See Pioneer,

507 U.S. at 393. Further, in neither case did the

moving party seek relief under Rule 60(b)(6) as

Justus has done, and unlike here, the courts in

those cases found that they lacked evidence to

support claims of mental incapacity.

For all these reasons, we find that Justus’s

situation falls squarely in the category of

28a

exceptional circumstances rather than excusable

neglect.

***

Accordingly, we conclude that Justus’s Rule

60(b) motion was properly classified as a motion

under Rule 60(b)(6), and that he alleged

“extraordinary circumstances” that, if confirmed,

would justify relief. And given that a Rule 60(b)(6)

motion need only “be made within a reasonable

time,” see Rule 60(c)(1), we reaffirm our September

24, 2020 holding that Justus’s Rule 60(b) motion

was timely—filed within a reasonable time “[g]iven

the extensive evidence documenting Justus’s

severe mental disabilities,” Order 1, Sept. 24,

2020, ECF No. 11.

B.

1.

Having established the timeliness of the Rule

60(b)(6) motion, we turn to the heart of the matter.

By issuing a COA in this case, we found that Justus

had made “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (“A

certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the

denial of a constitutional right.”). Where, as here,

“the district court denies relief on procedural

grounds,” a substantial showing of the denial of a

constitutional right is met if the petitioner can

“demonstrate both that the dispositive procedural

ruling is debatable, and that the petition states a

29a

debatable claim of the denial of a constitutional

right.” Nedd v. Clarke, 771 F. App’x 281, 282 (4th

Cir. 2019) (per curiam) (citing Slack v. McDaniel,

529 U.S. 473, 484-85 (2000)); see also Reid, 369 F.3d

at 371 (explaining that in considering whether to

issue a COA to permit review of a Rule 60(b)

motion, a court should “not look exclusively at the

[60(b)] motion” but also “assess whether [petitioner]

has made a substantial showing of the denial of a

constitutional right”).

The central issue in this appeal is whether

Justus has shown “extraordinary circumstances”

entitling him to Rule 60(b)(6) relief and equitable

tolling of his federal habeas petition. The overlap

between

the

types

of

“extraordinary

circumstances” that entitle a petitioner to 60(b)(6)

relief and those “extraordinary circumstances” that

entitle a petitioner to equitable tolling has not been

outlined in our precedent. And few other courts

have considered the issue. In an unpublished case,

the Fifth Circuit seems to have found the two

standards coterminous, or at least substantially

overlapping, in the context of profound mental

illness. See Smith, 2001 WL 43520, at *3

(“[M]ental incompetence, if sufficiently severe, may

qualify as an extraordinary circumstance . . . . that

merit[s] equitable tolling, and therefore Rule

60(b)(6) relief.” (emphasis added)).

Perhaps recognizing this precedent, the

district court defined the issue presented by

Justus’s Rule 60(b)(6) motion as “whether [Justus]

was entitled to equitable tolling as a result of his

mental condition,” J.A. 240, and we granted a COA

30a

concerning “whether Justus should be entitled to

equitable tolling regarding his habeas petition,”

Order 1, Sept. 24, 2020, ECF No. 11. Consistent

with that framing, we collapse the Rule 60(b)(6)

and

equitable

tolling

“extraordinary

circumstances” inquiries for the purpose of this

analysis. As a general matter, we recognize that

“an

extraordinary

circumstance

must

independently warrant each particular relief

sought,” and that each form of relief may serve a

different purpose and present unique factual

questions. Zack v. Sec’y, Fla. Dep’t of Corr., 721 F.

App’x 918, 923 (11th Cir. 2018) (unpublished). But

given the posture of this case and the centrality of

the facts surrounding Justus’s mental illness to

both inquiries, we conclude that if Justus’s mental

illness

satisfies

the

equitable

tolling

“extraordinary circumstances” standard, it should

also demonstrate “extraordinary circumstances”

under Rule 60(b)(6).

2.

The district court found that Justus was not

entitled to equitable tolling for his untimely federal

habeas petition because he had not “show[n] 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 error (in

May 2010) through some point in 2012.” J.A. 240–

41. Although the court agreed that “Justus’s

medical records indicate that he has been

diagnosed with a number of mental health

disorders, some of them quite serious,” it did not

consider his mental illness an “extraordinary

31a

circumstance” because “nothing [Justus] has

provided suggests that he was institutionalized or

judged to be incompetent at any point after he was

convicted, which is the relevant time period.” J.A.

240.

We have previously explained that “[a]s a

general matter, the federal courts will apply

equitable tolling because of a petitioner’s mental

condition only in cases of profound mental

incapacity.” Sosa, 364 F.3d at 513 (emphasis

added). But we have not elaborated on what

categories of mental impairment constitute such

profound incapacity. And in this vacuum, some

courts have interpreted our use of the term

“incapacity” and the Sosa Court’s citation to a

Ninth Circuit case, Grant v. McDonnell Douglas

Corp., 163 F.3d 1136 (9th Cir. 1998), to limit the

availability of equitable tolling to cases of

“institutionalization

or

adjudged

mental

incompetence.” See, e.g., Sosa, 364 F.3d at 513

(quoting Grant, 163 F.3d at 1138). 9

That limitation, however, is ill-suited for

this context. The capacity at issue here is what is

necessary to timely file a habeas petition. And that

differs from the capacity required to stand trial or

to waive the right to counsel. See Bills v. Clark,

628 F.3d 1092, 1099 (9th Cir. 2010) (“[T]he

‘competency’ standard does not exist in a vacuum—

it varies in relation to the task the defendant is

Notably, Grant did not hold that equitable tolling

must be limited to such situations; it merely recognized that

other circuits had permitted equitable tolling for mental

illness in limited circumstances and provided examples of

such. See 163 F.3d at 1138.

9

32a

expected to perform. A decision to stand trial or

plead guilty is different from undertaking a selfdefense at trial.”); Hunter v. Ferrell, 587 F.3d

1304, 1309 (11th Cir. 2009) (“Whether a criminal

defendant is competent to stand trial with an

attorney is a materially different question from

whether a habeas petitioner’s undisputed,

substantial [intellectual disability] prevented him

from filing pro se his § 2254 petition within the

AEDPA’s one-year limitations period.”). Indeed,

the Supreme Court has articulated different

competency standards for different proceedings.

See Dusky v. United States, 362 U.S. 402, 402

(1960) (per curiam) (competence to stand trial);

Indiana v. Edwards, 554 U.S. 164, 178 (2008)

(competence to represent oneself at trial).

In the habeas context, we hold that a

petitioner’s mental impairment is sufficiently

profound if it renders him unable to comply with

the filing deadline. As the Ninth Circuit has

explained, the “extraordinary circumstances” test for

equitable tolling is met either where the petitioner

cannot “rationally or factually . . . understand the

need to timely file” or where his “mental state

render[s] him unable . . . to prepare a habeas

petition and effectuate its filing.” Bills, 628 F.3d at

1099–1100; see also Perry v. Brown, 950 F.3d 410,

412–13 (7th Cir. 2020) (explaining that a

defendant with aphasia, which impaired his ability

to speak, write, and understand words, may have

been “unable to use language well enough to protect

his interests,” including by not being able to “ask

someone else to assist him”).

33a

Thus, the district court’s emphasis on

Justus’s failure to provide evidence “suggest[ing]

that he was institutionalized or judged to be

incompetent at any point [during] the relevant time

period” is misplaced because, while a petitioner’s

institutionalization or adjudged incompetence is

certainly relevant to an equitable tolling analysis,

it is not required. J.A. 241. Rather, this case

requires a more particularized investigation into

Justus’s mental illness at the relevant times to

determine whether it rendered him unable to

timely file his habeas petition.

Clarke argues that Justus has provided

insufficient evidence to meet this standard because

he has not provided treatment records or other

evidence of his level of impairment during the

relevant one-year filing period. But Justus has,

and had at that point, been diagnosed with either

Schizoaffective Disorder or Bipolar Disorder (Most

Recent Episode Mixed, with Psychosis), which is a

lifelong illness. Thus, his earlier and later medical

records provide evidence of his mental functioning

during the relevant period. See Ata v. Scutt, 662

F.3d 736, 743–44 (6th Cir. 2011) (explaining that

“the record corroborates [petitioner’s] allegations of

mental incompetence preventing timely filing”

even though “many of the instances in the record

of his past medical treatment occurred before

incarceration” because his “diagnosis of paranoid

schizophrenia presents a lifelong condition”);

Hunter, 587 F.3d at 1309–10 (finding that

petitioner had provided sufficient evidence “to

raise a factual issue as to whether a causal

connection exists between his mental impairment

34a

and his ability to file a timely § 2254 petition”

because a medical expert testified that his

impairment “is significant and irreversible” and so

a 1997 expert report “remains probative of

Hunter’s mental impairment as to the § 2254

petition during the limitations period and beyond

to 2008”). For that reason, we have affirmed here

our initial conclusion that Justus’s Rule 60(b)

motion was timely “[g]iven the extensive evidence

documenting Justus’s severe mental disabilities,”

Order 1, Sept. 24, 2020, ECF No. 11 (emphasis

added), based on medical records documenting

Justus’s symptoms at times preceding the five-year

period between the dismissal of his federal habeas

petition and the filing of his Rule 60(b) motion.

As we previously explained, Justus has

provided extensive evidence that he is severely

mentally ill. Following his arrest, Justus was twice

found incompetent to stand trial. And, although the

Circuit Court rejected Justus’s insanity defense, it

recognized at sentencing that “there is substantial

evidence in this case that the defendant suffers

from some very serious mental health problems.”

J.A. 180. In particular, there is significant

evidence—including his treating psychologist’s trial

testimony and his post-conviction medical records—

establishing that when unmedicated, Justus’s

functioning deteriorates and he experiences

depression and psychotic symptoms, such as

paranoia and perceptual disturbances.

Indeed, Justus’s form of mental illness is

characterized by periods of noncompliance with

treatment. See Paul S. Appelbaum, Reference

35a

Guide on Mental Health Evidence, in Fed. Judicial

Ctr., Reference Manual on Scientific Evidence 858

(3d ed. 2011) (explaining that although

antipsychotics are very effective, patients often

stop taking them “due in part to the nature of some

mental disorders, especially schizophrenia,” which

leads affected persons to deny that medication is

needed). At trial, a psychologist who treated

Justus between his two hospitalizations explained

that Justus would go through periods of

noncompliance with medication after which he

quickly re-experienced symptoms. J.A. 214 (“[H]e’d

go—take the medication, symptoms would

dissipate, then he’d go off and they’d increase, and

he’d go back on and they’d decrease again.”).

Indeed, Justus’s treatment records between May

2007 and September 2008 describe multiple periods

during which he rejected medications, and, as

noted above, an April 2016 doctor’s note explains

that Justus “has been off meds much more than on

meds.” J.A. 225. In sum, a feature of Justus’s illness

is that he will frequently reject treatment, and he

has provided evidence strongly suggesting that he

lacks the ability to timely file a habeas petition

during periods of nontreatment. At a minimum,

this evidence warrants further exploration into

Justus’s mental state during the relevant time

period.

It is true, as the dissent points out, that

Justus filed state habeas petitions and engaged

in other litigation-related activity between May 18,

2010 (when the limitations period for Justus’s

federal habeas petition began to run) and

September 24, 2013 (when Justus filed his federal

36a

habeas claim). But that fact does not preclude a

finding that Justus’s mental illness during that

timeframe

amounts

to

an

“extraordinary

circumstance.” That is, while those petitions may

undermine Justus’s argument that his “mental

state rendered him unable personally to prepare a

habeas petition and effectuate its filing,” they do

not speak to his ability “rationally or factually to

personally understand the need to timely file.”

Bills, 628 F.3d at 1100. To the contrary, that at

least one of his state petitions was dismissed as

untimely corroborates Justus’s claim that his

mental illness prevented him from timely pursing

his claims. And as the Ninth Circuit recognized

in Bills, either the inability to understand the

need to timely file or the inability to file a habeas

petition can amount to an “extraordinary

circumstance” warranting equitable tolling. Id.

Therefore, even if Justus’s state habeas petitions

and related activity cut against his argument,

they are not so dispositive that they should shortcircuit an evidentiary hearing at which Justus can

finally present full evidence of his mental illness

and its effect on his ability to file. With that

evidence in hand, the district court will be wellsuited to determine how much weight, if any, to

assign Justus’s state habeas petitions in its

“extraordinary circumstances” analysis.

Thus, we find that Justus’s allegation that

his mental illness was so severe during the filing

period that it prevented him from timely filing his

habeas petition, if true, constitutes

an

“extraordinary circumstance” supporting both Rule

60(b)(6) and equitable tolling relief, and that there

37a

is sufficient supporting evidence in the record to

justify further inquiry.

We acknowledge that the reason for the high

“extraordinary circumstances” standard in the

Rule 60(b) context is to protect the finality of

judgments. See Gonzalez, 545 U.S. at 535. Yet

Rule 60(b)(6) also “provides the court with a grand

reservoir of equitable power to do justice in a

particular case.” Reid, 369 F.3d at 374 (quoting

Eberhardt, 167 F.3d at 872). Given 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 do justice.” Gray, 1 F.3d at 266.

Therefore, we conclude that the district court

abused its discretion in failing to hold an

evidentiary hearing and remand for the district

court to determine whether Justus’s mental illness

constitutes an “extraordinary circumstance” that

warrants Rule 60(b)(6) and equitable tolling

relief. 10

10

If, on remand, the district court finds

“extraordinary circumstances,” it should also address any

remaining factors in the Rule 60(b) and equitable tolling

analyses. In considering the diligence required for equitable

tolling, the court should consider Justus’s pursuit of his state

habeas claims as evidence that he exercised reasonable

diligence during the filing period. Although at least some of

those filings were late, that does not undercut a finding of

diligence here because Justus needed only to exercise

reasonable diligence given his mental illness. See Bills, 628

F.3d at 1100–01 (explaining that in the context of mental

illness, a court must “consider whether the circumstances

demonstrate the petitioner was otherwise diligent in

attempting to comply with the filing requirements”

(emphasis added)).

38a

V.

By all accounts, Justus suffers from a

serious mental illness. He has sufficiently alleged,

and provided evidence supporting, the severity and

continuing nature of his mental illness to at least

justify an inquiry into whether and for how long

his illness may have prevented him from filing his

habeas petition. We therefore reverse the district

court’s order denying Justus’s Rule 60(b) motion and

remand the case to the district court with

instructions to conduct an evidentiary hearing on

whether Justus’s mental condition during the

relevant period constitutes an “extraordinary

circumstance” that justifies relief under Rule

60(b)(6) and entitles him to equitable tolling of the

statute of limitations governing his habeas petition.

REVERSED AND REMANDED

39a

NIEMEYER, Circuit Judge, dissenting:

Berman Justus, who was convicted of

capital murder in state court in 2006, was years

late when, in September 2013, he filed this federal

habeas petition under 28 U.S.C. § 2254, which

carries a one-year limitation period, see 28 U.S.C. §

2244(d)(1).

The district court accordingly

dismissed his petition as untimely. When, five

years later, Justus filed a motion for relief from

that final judgment under Federal Rule of Civil

Procedure 60(b)(6), arguing that the filing deadline

for his habeas petition should have been equitably

tolled because of his mental illness, the court found

that Justus had not demonstrated that his mental

illness excused the untimeliness of his habeas

petition. More particularly, the court found that

Justus had not “show[n] 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 error (in May 2010)

through some point in 2012.” Accordingly, the

court denied Justus’s motion for relief from the

judgment. We then issued a certificate of

appealability on the issue of “whether Justus

should be entitled to equitable tolling regarding

his habeas petition,” and we stated that his Rule

60(b)(6) motion would be considered as timely.

Although we previously directed the inquiry

only to the timeliness of Justus’s habeas petition

under § 2244(d)(1), the majority now appropriately

recognizes that while we entered an order holding

that Justus’s Rule 60(b)(6) motion was timely —

that is, “made within a reasonable time” within the

40a

meaning of Rule 60(c) — that order did not

eliminate the need for Justus also to establish that

“extraordinary circumstances” exist that warrant

the reopening of the final judgment under Rule

60(b)(6). See Buck v. Davis, 580 U.S. 100, 112

(2017).

Yet, while recognizing the need for

Justus to establish extraordinary circumstances

to obtain Rule 60(b)(6) relief, the majority

completely overlooks the Supreme Court’s express

admonition that, in the context of federal habeas

proceedings, lower courts should be especially

demanding before finding that extraordinary

circumstances justifying a reopening are present.

Indeed, the Court has specifically stated, “Such

circumstances will rarely occur in the habeas

context.” Gonzalez v. Crosby, 545 U.S. 524, 535

(2005) (emphasis added). And the majority also

rides roughshod over the district court’s findings,

heedless of the Court’s recognition that “Rule 60(b)

proceedings are subject to only limited and

deferential appellate review.” Id. (emphasis

added).

Moreover, strangely and without any

statutory authority, the majority concludes that it

is 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 § 2244(d)(1). Ante at 25.

Certainly, the Rule 60(b)(6) and equitable tolling

standards do each have in common an elemental

requirement

of

showing

“extraordinary

circumstances.” See Buck, 580 U.S. at 112;

41a

Holland v. Florida, 560 U.S. 631, 649 (2010) (“A

petitioner is entitled to equitable tolling only if he

shows (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary

circumstance stood in his way and prevented

timely filing” (cleaned up)). But while there is

some overlap between the two inquiries, it is legal

error to simply conflate them, as the majority

expressly does. See ante at 25. Such “collaps[ing]”

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, the Court has required a movant

seeking Rule 60(b)(6) relief to establish

“extraordinary circumstances” as a means of

preserving the finality of judgments.

See

Gonzalez, 545 U.S. at 535. Despite these distinct

standards and purposes, the majority concludes

that “if Justus’s mental illness satisfies the

equitable tolling ‘extraordinary circumstances’

standard,” it follows that he will have necessarily

also established “‘extraordinary circumstances’

under Rule 60(b)(6).” Ante at 25. I cannot agree.

Finally, even looking beyond the flaws in the

majority’s Rule 60(b)(6) analysis, its approach to

the underlying equitable tolling issue is equally

marred. The majority holds that, based on the

record presented to it, “the district court abused its

discretion in failing to hold an evidentiary hearing”

on whether Justus’s habeas petition was timely

filed. Ante at 31. Yet, while formally remanding

for that purpose, the majority nonetheless

forecasts its expectation for that hearing’s

42a

outcome. It finds, for instance, that Justus’s “fiveyear . . . delay” in filing his Rule 60(b)(6) motion

was “reasonable” because of “the extensive

evidence documenting [his] severe mental

disabilities.” Id. at 11–12; see also id. at 23, 28.

And it observes that Justus “has provided evidence

strongly suggesting that he lacks the ability to

timely file a habeas petition during periods of

nontreatment.” Id. at 29. That clearly tramples

the notion of a “limited and deferential

appellate review.” Gonzalez, 545 U.S. at 535.

In addition to these analytical flaws, the

majority also relies on factual conclusions that are

irredeemable. For instance, in applying the facts,

the majority forswears the need for any medical

records documenting Justus’s mental illness

during the relevant period. See ante at 27–28.

And perhaps most problematic, it fails to account

in any meaningful way for evidence in the record

demonstrating that during the relevant period,

Justus was able to, and did, file relevant and

complicated pleadings in court and conduct related

correspondence. The 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.

I would therefore affirm the district court’s

conclusion that Justus has not made the

extraordinary showing required for equitably

tolling the limitation period.

43a

*

*

*

In October 2006, Justus was convicted in a

Virginia state court of capital murder and related

offenses, and on January 23, 2007, he was

sentenced to life imprisonment plus 18 years. His

conviction and sentence were affirmed by the

Virginia Court of Appeals on November 30, 2007,

and he did not appeal further to the Virginia

Supreme Court.

Nearly three years later, on May 18, 2010,

Justus sent a letter to the Virginia State Bar

complaining about his attorney’s performance in

connection with his appeal. And thereafter, acting

pro se, he filed two state habeas petitions, clearly

presenting the claim as early as January 2011 that

his counsel had been ineffective in “fail[ing] to

perfect [his] appeal.” After the second of those

petitions was denied, he appealed to the Virginia

Supreme Court, which also denied review. In

addition to filing those petitions, Justus wrote

additional letters complaining that his counsel had

been ineffective “for failing to effect [his] appeal to

the Supreme Court of Virginia.”

On September 24, 2013, over three years

after he first wrote the Virginia State Bar, Justus,

again acting pro se, filed this federal habeas

petition in the district court, making the same

ineffective assistance of counsel claim that his

“counsel failed to perfect [his] second-tier direct

appeal to the Virginia Supreme Court.” The

district court noted that Justus’s federal petition

appeared to be untimely but allowed him to

44a

present an argument as to why it was not, even

though it was filed more than a year after the oneyear statute of limitations had run. See 28 U.S.C. §

2244(d)(1)(D). Following Justus’s response, the

court concluded that “[d]espite being given the

opportunity to amend his petition, Justus [had]

ma[de] no argument to support equitable tolling of

the statute of limitations.” Accordingly, the court

found that “Justus ha[d] not demonstrated any

grounds for equitable tolling,” and on June 6, 2014,

it dismissed his petition as untimely.

More than five years later, on August 13,

2019, Justus filed a motion in the district court

under Federal Rule of Civil Procedure 60(b)(6) to

reopen the court’s judgment dismissing his federal

habeas petition. He argued then for the first time

that his severe mental disorders had prevented

him from filing his habeas petition on time and

therefore that the one-year limitation period

applicable to federal habeas petitions should have

been equitably tolled. The district court, relying on

our established standard that “‘equitable tolling

[because] of a petitioner’s mental condition’ is only

appropriate ‘in cases of profound mental

incapacity’” (quoting United States v. Sosa, 364

F.3d 507, 513 (4th Cir. 2004)), denied Justus’s

motion for reconsideration. It found that Justus

had “not made the kind of ‘extraordinary’ showing

[necessary] to entitle him to equitable tolling.”

Remarkably, the majority now totally

overlooks the gap in evidence by pointing to

Justus’s medical records from before 2009,

projecting them forward without any basis for

45a

concluding that they were applicable to the period

from May 18, 2010 (when Justus had undisputedly

learned of his ineffective assistance claim) to

September 24, 2013 (when he filed his federal

habeas petition). The majority does 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 that 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. The relevant details of the record are not

disputed.

First, the record contains no medical

evidence from the relevant time period that shows

that Justus had a medical condition that denied

him the ability to file his habeas petition on time.

And the medical evidence that Justus did provide

from outside the relevant period shows that the

severity of his mental illness was not constant. To

be sure, the record indicates that Justus had a

mental disorder that was both chronic and severe.

But significantly, it also indicates that the severity

of the symptoms he experienced fluctuated over

time. For instance, in November 2007, medical

staff recorded about Justus, “no mental health

issues reported or observed.” But in June 2008,

when he had “been off all med[ications] over the

past several months,” medical records indicate that

his

“condition

[had]

deteriorated”

fairly

significantly, and he presented as “distressed” and

“disoriented.” Yet by comparison, in April 2016,

46a

when he also had not been on any medication, he

reported difficulty sleeping and stress associated

with being moved to a new prison but otherwise

indicated that he was “not having too many issues

with schizoaffective disorder” as long as he could

keep his stress level in check. The doctor who

interviewed him described his judgment, impulse

control, and insight as “fair” and his affect as only

“mildly dysphoric.” Indeed, Justus’s own take on

his condition, as described in an affidavit filed with

his motion for reconsideration, is that he has “in[s]

and outs,” meaning, as he explained, “that there

are time periods where I’m dealing with things in a

present sense and times when I’m not.” And his

mother wrote during the same period that “[h]e

can be OK sometimes. But if he stresses to[o]

much I’m worried.”

Of course, these points are not intended to

show that Justus did not or does not have a serious

mental disorder, but rather that the severity of his

disorder varied, such that Justus had periods in

which he could function relatively normally if he

was not under stress. Most importantly, however,

the record contains no medical evidence about

Justus’s condition between May 18, 2010, and

September 24, 2013, which is the relevant period

for determining whether the limitation period

should be tolled because of Justus’s mental

condition.

Moreover, evidence from the relevant period

shows affirmatively that Justus was indeed able to

file coherent court pleadings on his own behalf.

During that same period, he also was able to write

47a

letters to advance his claim that his lawyer

provided him ineffective assistance. Specifically,

from May 18, 2010, to September 24, 2013 — the

relevant period — Justus took the following

actions:

1. On May 18, 2010, he sent a letter to the

Virginia State Bar complaining about the

conduct of his attorney, J. Lloyd Snook, III.

2. In the summer and early fall of 2010, after

receiving Snook’s explanation as to why he

had failed to perfect an appeal to the

Virginia Supreme Court, Justus sent Snook

two letters asking for assistance. Snook

responded by letter dated October 3, 2010,

advising Justus that he should file a state

habeas petition in the circuit court.

3. On November 17, 2010, Justus filed a state

habeas petition in the circuit court, alleging,

inter alia, ineffective assistance of counsel.

4. Then, on January 17, 2011, Justus amended

his state habeas petition to add, among

other claims, the specific claim at issue here

— that his counsel was ineffective in failing

to perfect his appeal. He argued that his

lawyer “failed to perfect [his] appeal” and

that the failure “was without legitimate

strategic purpose . . . and therefore

petitioner suffered prejudice by having his

appeal . . . abandoned.”

5. In early January 2012, Justus filed a second

48a

complaint against Snook with the Virginia

State Bar “for failing to effect [his] direct

appeal to the Virginia Supreme Court,” and

on January 30, 2012, he sent “follow-up

correspondence certified mail, return receipt

requested” when he had not received a

timely response. While the Bar declined to

take further action, the complaint appears

to have prompted Snook to send Justus an

affidavit in March 2012 to assist in Justus’s

effort.

6. Apparently around this same time, Justus

“wrote to the mailroom at Wallen’s Ridge

State Prison . . . and requested confirmation

that no legal mail was ever received by [him]

from Mr. Snook during the dates of May 26,

2008, through June 2008,” i.e., the time

period when he should have received a letter

from Snook first informing him that his

petition for appeal to the Virginia Supreme

Court had not been filed. In response, the

mailroom sent him a letter dated February

22, 2012, confirming it had no record of such

a letter during that time in the incoming

legal logbooks it maintains.

7. On June 28, 2012, Justus filed a second

state habeas petition in the circuit court,

which was pending until September 27,

2012.

8. At some point thereafter, Justus appealed

the circuit court’s denial of his second

habeas petition by filing a petition with the

49a

Virginia Supreme Court, which was denied

on June 20, 2013.

9. A few months after that, on September 24,

2013, Justus finally filed his federal habeas

petition, presenting a single claim that he

“was denied the right to appeal his

convictions by way of ineffective assistance

of coun[s]el because coun[s]el failed to

perfect such appeal to the Virginia Supreme

Court after being directed to do so.”

This evidence of Justus’s extensive

litigation-related activity from May 2010 until

September 2013 simply and effectively precludes

his argument that his mental illness was so severe

that it prevented him from also timely filing his

federal habeas petition. Instead, it demonstrates

that he was capable of putting together relatively

complicated legal filings and gathering evidence to

support those filings. To be sure, he directed his

attention during the time period to pursuing

remedies in state court, rather than federal court,

which turns out to have been a mistake. But it is

well established that “even in the case of an

unrepresented prisoner, ignorance of the law is not

a basis for equitable tolling.” Sosa, 364 F.3d at

512.

At bottom, I fail to see how the district court

on remand could conclude that Justus lacked the

mental capacity to file a habeas petition alleging

the ineffective assistance of counsel claim at issue

here within a year of discovering its factual basis in

May 2010, when he did in fact file at least one

50a

habeas petition in state court alleging that precise

claim within the one-year period. Thus, as in Sosa,

I would conclude that a remand for further

development of the record is unwarranted because

the many steps Justus was able to take in “seeking

to vacate or modify his sentence indicate quite

clearly that his is not [the kind of] extraordinary

case” where a petitioner’s “profound mental

incapacity” has prevented a timely filing. 364 F.3d

at 513; see also Conroy v. Thompson, 929 F.3d 818,

821 (7th Cir. 2019) (concluding that “the district

court was well within its discretion” in concluding

that petitioner “failed to prove that extraordinary

circumstances prevented him from timely filing” in

part because his state-court filings during the

relevant time period “show[ed] that [he] had the

capacity to engage in the legal process”); Obriecht

v. Foster, 727 F.3d 744, 751 (7th Cir. 2013)

(emphasizing that the petitioner “filed direct and

collateral appeals in state court [during the period

in] which he assert[ed] that his mental health

prevented him from” filing and that he had

“offered no explanation for how he was able to file

in those cases but not in this one”); Robison v.

Hinkle, 610 F. Supp. 2d 533, 540 (E.D. Va. 2009)

(“A petitioner’s ability to make other legal filings

during the alleged period of his incompetency

counsels strongly against allowing equitable tolling

of [his] federal habeas petition”).

Accordingly, I would affirm.

51a

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

BERMAN JUSTUS, JR., )

Petitioner,

)

)

)

v.

)

)

)

HAROLD CLARKE,

)

Respondent.

)

Civil Action No.

7:13cv00461

MEMORANDUM

OPINION

By: Norman K. Moon

United States District

Judge

Petitioner Berman Justus, Jr., a Virginia

inmate proceeding pro se, filed this petition for

writ of habeas corpus pursuant to 28 U.S.C. §

2254, challenging his 2007 convictions and

sentence in the Greene County Circuit Court. I

find that Justus’s petition is untimely filed and

that there are no grounds for equitable tolling.

Therefore, I will dismiss his petition.

I.

On January 23, 2007, the Greene County

Circuit Court entered judgment against Justus,

convicting him of capital murder, use of a firearm

in the commission of a capital murder, first degree

murder, use of a firearm in the commission of

murder, and shooting into an occupied vehicle. The

court sentenced Justus to two life terms plus

eighteen years of incarceration. Justus appealed,

and the Court of Appeals of Virginia denied his

52a

appeal on November 30, 2007. Justus did not

appeal to the Supreme Court of Virginia; however,

he argues that the appeal was not filed due to

counsel’s error. On May 18, 2010, Justus filed a

Virginia State Bar complaint against counsel for

counsel’s failure to perfect the appeal. On

November 17, 2010, Justus filed a habeas petition

in the Greene County Circuit Court, which was

“denied and dismissed with prejudice” on February

28, 2011 as untimely filed. Justus did not appeal.

Justus then filed a second habeas petition in the

Greene County Circuit Court on June 28, 2012,

which was dismissed on September 27, 2012.

Justus appealed and the Supreme Court of

Virginia refused his habeas appeal on June 20,

2013. Justus filed his instant § 2254 habeas

petition on September 24, 2013, alleging that

counsel provided constitutionally ineffective

assistance in failing to perfect Justus’s direct

appeal. The court conditionally filed Justus’s

petition, advised him that the petition appeared to

be untimely filed, and gave him an opportunity to

respond to the court regarding the timeliness of his

petition.

II.

A one-year statute of limitations applies

when a person in custody pursuant to the

judgment of a state court files a federal

petition for a writ of habeas corpus. 28 U.S.C. §

2244(d). 1 Assuming, without finding, that Justus

1 Under 28 U.S.C. § 2244(d), as amended by the

Antiterrorism and Effective Death Penalty Act [“AEDPA”] on

53a

exercised due diligence and did not discover the

factual predicate of his claim until May 18, 2010

when he filed the Bar complaint against counsel,

the statute of limitations began to run on Justus’s

April 24, 1996, a federal petition for writ of habeas corpus

must be brought within one year from the latest of the

following:

(A)

the date on which the judgment became final

by the conclusion of direct review or the

expiration of the time for seeking such

review;

(B)

the date on which the impediment to filing an

application created by State action in

violation of the Constitution or laws of the

United States is removed, if the applicant

was prevented from filing by such State

action;

(C)

the date on which the constitutional right

asserted was initially recognized by the

Supreme Court, if the right has been newly

recognized by the Supreme Court and made

retroactively applicable to cases on collateral

review; or

(D)

the date on which the factual predicate of the

claim or claims presented could have been

discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1)(A - D). Here, it is unclear exactly

when Justus discovered that counsel had not filed a direct

appeal, but it is clear that he knew that an appeal was not

filed when he complained to the Virginia State Bar about

counsel’s performance. I will assume, without finding, that

Justus exercised due diligence in discovering his claim and

that upon discovery he immediately filed the Bar complaint.

54a

case on that day. However, the time during which

a “properly filed” state habeas petition is pending

is not counted toward the period of limitation. 28

U.S.C. § 2244(d)(2). Assuming, without finding,

that Justus’s first habeas petition was properly

filed, the statute of limitations clock stopped

running

on

November

17,

2010,

after

approximately 183 days, when Justus filed his first

habeas petition in the Greene County Circuit

Court. The clock then began to run again on

March 30, 2011, when Justus’s time to appeal that

circuit court’s dismissal expired. Assuming,

without finding, that Justus’s second state habeas

petition filed in the Greene County Circuit Court

was also properly filed, the statute of limitations

clock stopped running again on June 28, 2012,

after an additional 456 days, when Justus filed his

second state habeas petition. The clock then began

to run again when the Supreme Court of Virginia

refused his appeal on June 20, 2013. Justus filed

this federal habeas petition on September 24, 2013,

approximately 96 days after the Supreme Court of

Virginia dismissed his second state habeas

petition. Therefore, the time clock on Justus’s

statute of limitations ran for a total of

approximately 735 days before he filed his federal

habeas petition. Accordingly, Justus’s petition is

time-barred unless he demonstrates grounds for

equitable tolling.2

2 A petitioner must demonstrate either the timeliness

of his petition pursuant to § 2244(d) or that the principle of

equitable tolling applies in his case. See Hill v. Braxton, 277

F.3d 701 (4th Cir. 2002); Harris v. Hutchinson, 209 F.3d 325

(4th Cir. 2000). Otherwise, an untimely petition must be

dismissed by a federal district court. 28 U.S.C. § 2244(d)(1)(A)-

55a

Despite being given the opportunity to

amend his petition, Justus makes no argument to

support equitable tolling of the statute of

limitations. Accordingly, I find that Justus has not

demonstrated any grounds for equitable tolling

and thus, his petition is untimely filed.

III.

For the reasons stated, I will dismiss Justus’s

petition as untimely filed.

ENTER: This 6th day of June, 2014.

(D). A district court may apply equitable tolling only in “those

rare instances where—due to circumstances external to the

party's own conduct—it would be unconscionable to enforce the

limitation period against the party and gross injustice would

result.” Rouse v. Lee, 339 F.3d. 238, 246 (4th Cir. 2003) (citing

Harris, 209 F.3d at 330). The petitioner must demonstrate that

some action by the respondent or “some other extraordinary

circumstance beyond his control” prevented him from complying

with the statutory time limit, despite his exercise of “reasonable

diligence in investigating and bringing the claims.” Harris, 209

F.3d at 330 (citing Miller v. N.J. State Dep’t of Corrs., 145 F.3d

616, 617 (3d Cir. 1998)).

56a

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

BERMAN JUSTUS, JR., )

Petitioner,

)

)

)

v.

)

)

)

HAROLD CLARKE,

)

Respondent.

)

Civil Action No.

7:13-cv-00461

ORDER

By: Norman K. Moon

Senior United States

District Judge

Petitioner Berman Justus, Jr., a Virginia

inmate proceeding pro se, filed this federal habeas

action in 2013, challenging his 2007 convictions

and sentence in the Greene County Circuit Court.

By opinion and order entered June 9, 2014, I

dismissed the petition after concluding that it was

untimely and Justus had not presented any

arguments for equitable tolling or that he was

actually innocent. (Dkt. Nos. 7, 8.) Justus did not

appeal.

On August 13, 2019, more than five years

after I dismissed his petition, the Clerk received

from Justus a motion for reconsideration. (Dkt. No.

10.) In it, Justus argues that he suffers from

“multiple mental health disabilities including

schizo-affective disorder/bi-polar type” and that

during his AEDPA filing period (which he identifies

as January 23, 2007 through January 23, 2009), his

disability

prevented

him

from

effectively

57a

petitioning the court for habeas relief. (See

generally Dkt. No. 10 at 3.) He also alleges that

personnel at Wallens Ridge State Prison (“WRSP”)

interfered with his access to counsel by not

allowing him to speak to his attorneys and by

failing to provide him with documents counsel sent

to him. (Id. at 5.) Lastly, he faults WRSP mental

health staff for failing to adequately treat his

mental health problems, which prevented him from

filing a timely petition and has allowed his mental

illness to continue to affect him. (Id. at 5–7.)

Justus’s filing is signed by him, and includes

a brief affidavit from him discussing his mental

health problems. 1 The also motion includes some

medical records and expert reports concerning his

mental status at the time of his offense and for

portions of the time that he has been incarcerated.

The motion also includes affidavits from trial

counsel and from Justus’s mother and excerpts

from court transcripts.

As an initial matter, the Fourth Circuit has

recently emphasized that where a Rule 60(b)

motion seeks a readjudication of the merits of a

prior claim, which had been presented in a prior §

2254 application, a district court should treat it as

a second or successive habeas petition under §

2244(b) and should dismiss it or transfer it to the

Fourth Circuit. Richardson v. Thomas, 930 F.3d

1 It also contains a statement from a fellow inmate

who is assisting him stating that other prisoners who had

told Justus they would help with his legal challenges had

taken advantage of him instead because of his mental

problems. (Dkt. No. 10 at 8.)

58a

587, 597 (4th Cir. 2019). A claimant is not seeking

readjudication of the merits of a claim, however,

“when he merely asserts that a previous ruling

which precluded a merits determination was in

error—for example, a denial for such reasons as

failure to exhaust, procedural default, or statute-oflimitations bar.” Gonzalez v. Crosby, 545 U.S. 524,

532 n.4 (2005). Here, I did not adjudicate the

merits of Justus’s habeas petition, but found the

petition barred in its entirety by the applicable

statute of limitations. It appears that Justus’s

motion for reconsideration challenges that ruling,

which was not a merits-based ruling. See id.

Accordingly, his motion is not a “second or

successive” petition, but is instead properly treated

as a Rule 60(b) motion.

Rule 60 of the Federal Rules of Civil

Procedure allows a court to grant relief from a

judgment or order only under very limited

circumstances. Indeed, the remedy provided by

Rule 60(b)(6), the only subsection Justus appears

to invoke—requires a showing of “extraordinary

circumstances.” Gonzalez, 545 U.S. at 536. “When

making a motion under Rule 60(b), the party

moving for relief ‘must clearly establish the

grounds therefor to the satisfaction of the district

court,’ and such grounds ‘must be clearly

substantiated by adequate proof.’” In re Burnley,

988 F.2d 1, 3 (1992) (internal citations omitted).

When I previously determined that Justus’s

petition was time-barred, I assumed, without

finding, that he exercised due diligence and did not

discover the factual predicate of his claim— that

59a

his trial counsel had failed to appeal to the

Supreme Court of Virginia—until May 18, 2010. I

also assumed that his first and second habeas

petitions in state court were properly filed and so I

excluded the time that they were pending from the

federal limitations period. Despite these many

beneficial

assumptions,

his

petition

was

nonetheless filed outside the statute of limitations.

The issue now before me is whether he was

entitled to equitable tolling as a result of his

mental condition. 2 As the Fourth Circuit has

explained, “equitable tolling as a result of a

petitioner’s mental condition” is only appropriate

“in cases of profound mental incapacity.” United

States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004).

In so reasoning, Sosa cited to a Ninth Circuit case

that

referenced

circumstances

such

as

“institutionalization

or

adjudged

mental

incompetence.” Id. (citing Grant v. McDonnell

Douglas Corp., 163 F.3d 1136, 1138 (9th Cir.

1998)). To be sure, Justus’s medical records

indicate that he has been diagnosed with a number

of mental health disorders, some of them quite

serious. Even at trial, psychologists for both the

state and the defense testified that, at least after

the offense, he was suffering from a serious mental

illness. (E.g., Dkt. No. 10-1 at 11, 40–41.) Further,

he was twice institutionalized to restore

competency before being required to stand trial.

2

Although he presents evidence of problems

communicating with his counsel, he does not explain how any

of those problems prevented him from timely filing his

petition.

60a

(Id. at 4–5, 40.) Ultimately, the trial court

determined that Justus was not insane at the time

of the offense, but nonetheless acknowledged his

significant mental illnesses. (See Dkt. No. 10-1 at

15 (reflecting trial judge’s statement that “[t]here is

substantial evidence in this case that the defendant

suffers from some very serious mental health

problems.”).)

But to be entitled to equitable tolling, Justus

would have 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 error (in May 2010) through some

point in 2012. This he has not done.

Neither the documents attached to his

motion nor Justus’s affidavit explain sufficiently

why he should be entitled to equitable tolling or

why he did not present these documents sooner in

asking for reconsideration. In particular, nothing

he has submitted indicates a period of

hospitalization after he was sentenced or while

incarcerated and instead his records show that he

was not even on medication for long periods of time

while incarcerated. For example, a doctor’s note

from 2016 states that he has been incarcerated

since 2007 and has not been in mental health

treatment and also notes that he has “been off

meds much more than on” them. (Dkt. No. 10-1 at

60.) Certainly, nothing he has provided suggests

that he was institutionalized or judged to be

incompetent at any point after he was convicted,

which is the relevant time period. Thus, I conclude

that he has not made the kind of “extraordinary”

61a

showing to entitle him to equitable tolling. See

House v. Clarke, No. 3:16CV238, 2017 WL 990580,

at *4 (E.D. Va. Mar. 14, 2017) (rejecting equitable

tolling where petitioner failed to “allege any facts

showing” how his mental condition prevented him

from timely filing and collecting authority holding

same). 3

For the foregoing reasons, it is hereby

ORDERED

that

Justus’s

motion

for

reconsideration (Dkt. No. 10) is DENIED.

The Clerk shall send a copy of this order to

the parties.

ENTER: This 28th day of February, 2020.

3 It is also worth noting that Justus has presented

nothing to explain his delay of more than five years in filing

his motion for reconsideration. While there is no express time

limit in Rule 60, motions under Rule 60(b) “must be made

within a reasonable time.” Fed. R. Civ. P. 60(c)(1). Justus

has not shown or explained why it was reasonable to file his

motion more than five years after his habeas petition was

dismissed. This, too, undercuts his claim for relief.