Opposition Brief — Chadwick Dotson, Director, Virginia Department of Corrections, Petitioner v. Berman Justus, Jr.
Supreme Court briefFeb 15, 2024
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No. 23-652
IN THE
CHADWICK DOTSON, DIRECTOR, VIRGINIA DEPARTMENT
OF CORRECTIONS
Petitioner,
v.
BERMAN JUSTUS, JR.,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit
_______________
BRIEF IN OPPOSITION FOR RESPONDENT
_______________
Kelly A. Warlich
MCGUIREWOODS LLP
201 N. Tryon St.
Suite 3000
Charlotte, NC 28202
Joshua D. Wade
Kate C. Ashley
MCGUIREWOODS LLP
800 E. Canal St.
Richmond, VA 23219
Jonathan Y. Ellis
Counsel of Record
APPELLATE JUSTICE
INITIATIVE AT
MCGUIREWOODS LLP
888 16th St. N.W.
Suite 500
Washington, DC 20006
(202) 828-2887
jellis@mcguirewoods.com
Counsel for Respondent
i
QUESTION PRESENTED
Whether a habeas petitioner is entitled to an
evidentiary hearing to determine whether he can
demonstrate that his mental illness constitutes an
“extraordinary circumstance” justifying relief under
Federal Rule of Civil Procedure 60(b)(6) and equitable
tolling of the statute of limitations when he presents
allegations and evidence of ongoing, severe mental
illness that prevented him from timely filing his
petition and there is no evidence in the record refuting
the petitioner’s claim that his mental illness
prevented him from timely filing.
ii
TABLE OF CONTENTS
QUESTION PRESENTED ......................................... i
TABLE OF AUTHORITIES ..................................... iii
STATEMENT OF THE CASE .................................. 1
A.
Factual Background and State
Court Proceedings ........................................... 1
B.
The Proceedings Below ................................... 3
REASONS FOR DENYING THE WRIT ................ 11
I.
The Decision Below Does Not Implicate
Any Conflict Among the Courts of
Appeals .......................................................... 12
A.
II.
III.
The Circuits Agree on the Legal
Standard for Equitable Tolling
Under AEDPA ................................... 13
B.
Petitioner Fails to Show Any
Conflict in the Circuits’
Application of that Standard ............. 14
This Case Would Be a Poor Vehicle to
Address the Question Presented .................. 26
The Court of Appeals’ Decision Is
Correct ........................................................... 29
CONCLUSION ........................................................ 32
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Ata v. Scutt,
662 F.3d 736 (6th Cir. 2011) .......................... 21, 30
Biester v. Midwest Health Serv. Inc.,
77 F.3d 1264 (10th Cir. 1996) .............................. 19
Carey v. Saffold,
536 U.S. 214 (2002) .............................................. 31
Collins v. Scurr,
(8th Cir. Sept. 19, 2000) ...................................... 23
Conroy v. Thompson,
929 F.3d 818 (7th Cir. 2019) .......................... 17, 25
Fisher v. Gibson,
262 F.3d 1135 (10th Cir. 2001) .......... 20, 22, 24, 25
Fleming v. Evans,
481 F.3d 1249 (10th Cir. 2007) ............................ 29
Harper v. Ercole,
648 F.3d 132 (2d Cir. 2011)............................ 13, 25
Head v. Wilson,
792 F.3d 102 (D.C. Cir. 2015) .............................. 13
Henderson v. Thaler,
626 F.3d 773 (5th Cir. 2010) ................................ 20
iv
Holland v. Florida,
560 U.S. 631 (2010) ...................... 15, 25, 29, 30, 31
Hunter v. Ferrell,
587 F.3d 1304 (11th Cir. 2009) ...................... 29, 30
Johnson v. Hobbs,
678 F.3d 607 (8th Cir. 2012) ................................ 13
Jones v. Lumpkin,
22 F.4th 486 (5th Cir. 2022) .......................... 13, 25
Jones v. Stephens,
541 F. App’x 499 (5th Cir. 2013) .......................... 20
Klapprott v. United States,
335 U.S. 601 (1949) .............................................. 30
Laws v. Lamarque,
351 F.3d 919 (9th Cir. 2003) ................................ 31
Marsh v. Soares,
223 F.3d 1217 (10th Cir. 2000) ............................ 13
Martin v. Fayram,
849 F.3d 691 (8th Cir. 2017) ................................ 23
Mayberry v. Dittman,
904 F.3d 525 (7th Cir. 2018) .................... 20, 21, 24
Melson v. Comm’r,
713 F.3d 1086 (11th Cir. 2013) ............................ 13
Mount Soledad Mem’l Ass’n v. Trunk,
567 U.S. 944 (2012) .............................................. 27
v
Nara v. Frank,
264 F.3d 310 (3d Cir. 2001) ................................. 31
Obriecht v. Foster,
727 F.3d 744 (7th Cir. 2013) ........ 13, 14, 15, 23, 24
Pabon v. Mahanoy,
654 F.3d 385 (3d Cir. 2011)............................ 13, 25
Perry v. Brown,
950 F.3d 410 (7th Cir. 2020) ................................ 31
Rios v. Mazzuca,
78 F. App’x 742 (2d Cir. 2003) ............................. 20
Riva v. Ficco,
615 F.3d 35 (1st Cir. 2010) ............................ 13, 30
Roy v. Lampert,
465 F.3d 964 (9th Cir. 2006) ................................ 29
Rudin v. Myles,
781 F.3d 1043 (9th Cir. 2015) .............................. 13
Smith v. Saffle,
28 F. App’x 759 (10th Cir. 2001) .......................... 14
Virginia Mil. Inst. v. United States,
508 U.S. 946 (1993) .............................................. 27
Watkins v. Deangelo-Kipp,
854 F.3d 846
(6th Cir. 2017) .................. 13, 18, 20, 21, 23, 24, 25
Zappone v. United States,
870 F.3d 551 (6th Cir. 2017) ................................ 19
vi
Other
Federal Rule of Civil Procedure
60(b)(6) ................... 9, 10, 11, 12, 26, 27, 28, 29, 30
1
STATEMENT OF THE CASE
A. Factual Background and State Court
Proceedings
1. In 2003, Respondent Berman Justus, Jr., shot
and killed his estranged wife, Amanda Justus, and her
boyfriend, Joe White. Joint Appendix, USCA Dkt. No.
36, at JA40, 205. Three years later, in October 2006,
the Virginia trial court held a bench trial on Justus’s
charges of capital murder, use of a firearm in the
commission of capital murder, first degree murder,
use of a firearm in the commission of murder, and
shooting into an occupied vehicle. JA40–41.
At trial, Justus’s counsel did not contest his
actions, but argued that Justus was legally insane at
the time of the crimes. JA205. Both testifying experts
agreed that Justus suffered from serious mental
health problems and was afflicted with a disease that
manifested with psychotic episodes. JA181, 205. Dr.
Evan Nelson, a clinical psychologist, opined that
Justus was clinically depressed at the time of the
crimes. JA41. And Dr. William Stejskal testified that
Justus exhibited features of psychosis that caused a
global impairment in his ability to function. JA41–42.
Dr. Nelson opined, however, that Justus did not
become psychotic until after the killings. JA40, 183.
And Dr. Stejskal was unable to offer an opinion to a
reasonable degree of certainty about Justus’s sanity at
the time of the offenses. JA41–42.
The trial court found Justus was not insane at the
time of the offenses and convicted him on all counts.
2
JA207. The court sentenced Justus to two life terms
plus eighteen years. JA65. Judgment was entered on
January 23, 2007. Id. The Court of Appeals of
Virginia denied Justus’s petition for appeal on
November 30, 2007. JA40–43.
2. Following the state court of appeals’ denial of
Justus’s petition, Justus’s counsel, J. Lloyd Snook, III,
prepared a petition to the Supreme Court of Virginia.
JA208. Although Snook arranged for his paralegal to
timely file the petition and believed it had been timely
filed, he discovered in May 2008 that the petition was
never filed. JA208–09. Snook sent Justus a letter
explaining what happened with the appeal and
suggesting Justus talk to another lawyer, but Justus
never received Snook’s letter. JA53–54, 105, 209.
Two years later, Justus filed a complaint against
Snook with the Virginia State Bar based on Snook’s
failure to perfect his appeal to the state supreme court.
JA145, 149. Snook responded to the complaint,
alerting Justus to the May 2008 letter. JA24, 45–50.
Justus asked Snook to point Justus to another lawyer
who could assist Justus with pursuing the appeal.
JA25. Snook informed Justus that, at that point, his
only remedy was a petition for habeas corpus, and he
explained that Justus did not have an automatic right
to an attorney to assist with the habeas petition.
JA55. Snook recommended that Justus file a petition
in Virginia circuit court pro se and ask the judge to
appoint him an attorney. Id.
In November 2010, Justus filed a pro se habeas
petition in the circuit court asserting ineffective
3
assistance of counsel, followed by an amended habeas
petition in January 2011. JA57–64, 66. The circuit
court denied the petition in February 2011. JA65–68.
Two years later, the Supreme Court of Virginia denied
a subsequent petition for appeal in June 2013, but the
record is unclear as to when this subsequent appeal
was filed and by whom. JA112.
B. The Proceedings Below
1. The current proceedings began when Justus
filed a federal habeas petition under 28 U.S.C. § 2254
in the U.S. District Court for the Western District of
Virginia in September 2013, asserting ineffective
assistance of counsel based on Snook’s failure to
perfect the appeal to the Supreme Court of Virginia.
JA3–17, 113–14. The district court conditionally filed
the petition, advised Justus that the petition appeared
to be untimely, and directed Justus to submit any
additional argument or evidence regarding the
timeliness of the petition. JA115–18.
Justus filed a response to the district court’s order,
but failed to address the timeliness of the petition.
JA122–48. In June 2014, the court thus denied the
petition as untimely under the Antiterrorism and
Effective Death Penalty Act’s (AEDPA’s) one-year
statute of limitations. JA149–51. And the court
denied a certificate of appealability on the same day.
JA152.
2. Five years later, in August 2019, Justus filed a
motion for reconsideration, arguing that his mental
health disorders prevented him from timely filing his
federal habeas petition. JA153–60. Although Justus
4
was technically proceeding pro se, the motion stated
that Darrell Young, Justus’s fellow inmate, had
prepared it. JA160.
In support of the motion, Justus filed medical
records and other evidence of his mental illness from
2003–08 and 2016. JA166–229. That evidence
showed that Justus had long suffered from chronic
mental illness.
Beginning as soon as Justus was taken into
custody, it was quickly apparent that Justus was
“seriously mentally ill.” JA205. Three days after the
killings, Justus indicated that he believed he could
stare at objects and make them change color. JA175,
183. Justus’s diagnosis at the time was adjustment
disorder with mixed anxiety and depressive features.
Id. Over the next several months, Justus revealed his
hyper-religious delusions, including his belief that
God had commanded him to kill Amanda Justus and
Joe White and if he did not do so, then he would not go
to heaven. JA205–06.
In December 2003, Justus completed a jail request
form asking “to see mental health cause of stress,
crying and mental problems [he is] having and can’t
control most of the time.” JA176. His doctors
promptly prescribed Seroquel, an antipsychotic
medication. Id. The medicine reduced Justus’s
hallucinations, but he still occasionally heard voices
and imagined seeing things out of the corner of his eye.
Id. Justus reported being in a psychotic state in which
he believed his son was with him. Id. And when
Justus’s hallucinations continued and began to
5
manifest as more disturbing and upsetting images, his
doctors increased his Seroquel prescription. Id.
By February 2004, despite treatment with the
antipsychotic medication, Justus was floridly
psychotic and declared incompetent to stand trial.
JA183. He was admitted to Central State Hospital
(CSH) from April to October for treatment to restore
his competency. JA169–70. During that period, he
was diagnosed with schizoaffective disorder. JA170.
After being found competent and discharged from
CSH in October 2004, Justus stopped complying with
his medication in spring and summer 2005, resulting
in his decompensation and return to a florid psychosis.
JA184, 214. Justus was again declared incompetent
to stand trial and again admitted to CSH from
November 2005 through May 2006.
JA169–70.
During that period, CSH changed Justus’s diagnosis
to bipolar disorder, most recent episode mixed, with
psychosis. JA170. 1
Although Justus was eventually able to stand trial,
following his conviction, his functionality soon
continued to deteriorate due to his ongoing severe
mental health disorders. For the first several months
after his conviction, largely driven by his desire to see
his son, Justus complied with his treatment by taking
prescribed medications. JA187, 190–91, 204. But by
late 2007, his son’s psychiatrist declined to give Justus
Both diagnoses indicate problems with abnormal mood and
psychotic thinking. JA170. The differences are clinical nuances
related to diagnostic taxonomy and the class of medications for
primary treatment. Id.
1
6
permission to see his son after talking to Justus’s
doctors, and around that same time, Justus began
refusing his medication. JA192–94, 204.
Predictably, Justus’s noncompliance was followed
by depression, mood swings, and psychotic symptoms,
including visual hallucinations. JA195. Mental
health records from a February 2008 visit with
psychiatrist Dr. Everette McDuffie reflect that Justus
was hypervigilant, reporting that he had not been
sleeping well but did not want to be vulnerable to
being attacked while he was asleep. JA196. Dr.
McDuffie noted Justus had symptoms of posttraumatic stress disorder that eclipsed symptoms of
another mood disorder, antisocial personality
disorder, and a history of thought disorder with manic
symptoms. Id. Dr. McDuffie concluded that Justus
would not improve his functioning without both
medication and a period of single cell living, and he
enrolled Justus in a trial of the drug Abilify. Id.
Shortly thereafter, however, Justus refused to
continue taking Abilify. JA197. During a March 2008
session with Dr. McDuffie, Justus expressed concern
about suffering sedation, stating “I just can’t take the
chance right now.” Id. Justus acknowledged his past
psychotic symptoms and delusions and expressed
feeling vulnerable to hyper-religiosity. Id. Dr.
McDuffie diagnosed Justus with chronic PTSD,
antisocial personality disorder, and schizoaffective
disorder in remission. Id. Dr. McDuffie reluctantly
discontinued Abilify but noted that Justus’s symptoms
were unlikely to subside without medication. Id.
7
At the end of March 2008, Justus briefly expressed
a willingness to again try medication, but by the
following month, he was off again. JA198–99. In an
April 2008 appointment with Dr. McDuffie, Justus
recognized that his increased hypervigilance and
increased suspicion and paranoia coupled with poor
sleep would eventually exhaust him emotionally and
physically, but he still refused medication. Id. Dr.
McDuffie recorded that Justus minimized his
symptoms. Id. He observed that Justus was not
grossly psychotic at that time but appeared paranoid.
Id. He diagnosed Justus with schizoaffective disorder
with prominent mood impairment, PTSD, and
antisocial personality disorder. Id. And he noted that
as Justus’s functioning deteriorated, his thought
disorder with paranoia was eclipsing his previously
manifested PTSD. Id. Dr. McDuffie further noted
that the prognosis for a patient with untreated
schizoaffective disorder is poor. Id.
In June 2008, Justus reported that he stayed angry
and frustrated all the time and that he was not
sleeping. JA200. He stated that he was ready to be
back on his medication and felt that he needed to be
back on medication to keep calm. Id. During a visit
with Dr. McDuffie, she observed that Justus was
suffering from a chronic mental illness and had been
off all medication for several months. JA201. As
expected, Justus’s condition had deteriorated because
of his discontinuation of treatment, and he was not
well. Id. Justus appeared disoriented and continued
to be sleepless, paranoid, irritable, and dysphoric. Id.
Justus looked exhausted and often glanced around the
8
room as if he was looking for something. Id. Justus
was willing to try the drug Risperdal. Id.
This pattern of alternating accepting and refusing
treatment continued. In July 2008, Justus met with a
new physician, Dr. Ahsan, who described Justus as
guarded with paranoid ideation. JA202. Justus
stated he still could not sleep, his medication was not
doing anything for him, and he stayed nervous all the
time. Id. In August, Justus met with a psychiatrist,
Dr. Kelly Houck, after again refusing his medication.
JA204.
On that visit, Dr. Houck adjusted his
Risperdal prescription. Id. But by September 2008,
Justus reported to Dr. Houck that he was doing “fine”
off his medication. JA203. Justus stated that he did
not need medication and he was reluctant to admit
that he ever needed medication. Id. Although he had
been “stressed out and gone off,” he did not want to
talk about that and was not crazy. Id. Dr. Houck
noted that Justus’s insight was limited and impulsecentered and his judgment was likely poor. Id.
Collectively, Justus’s mental health records show
that, despite repeated chronic mental health
diagnoses, Justus has been off medication much more
than he has been on medication. JA225. Justus
continued to refuse his medication in 2016, and Justus
was still having “ins and outs” in 2019. JA185–86,
225–26, 228.
3. Notwithstanding the evidence of Justus’s
serious mental health issues, the district court denied
the motion for reconsideration without an evidentiary
hearing. Pet. App. 56a–61a. The court construed
9
Justus’s motion as a motion under Federal Rule of
Civil Procedure 60(b)(6), and considered whether
Justus was entitled to equitable tolling of the statute
of limitations as a result of his mental condition. Pet.
App. 58a–59a. The court concluded he was not,
reasoning that none of the evidence “indicates a period
of hospitalization after he was sentenced or while
incarcerated.” Pet. App. 60a. “Certainly,” the court
continued, “he was not institutionalized or judged to
be incompetent at any point after he was convicted.”
Id. The court thus concluded that Justus “had not
made the kind of ‘extraordinary’ showing to entitle
him to equitable tolling.” Pet. App. 60a-61a.
4. a. The court of appeals vacated the district
court’s ruling, and remanded for an evidentiary
hearing. Pet. App. 3a. As relevant here, the court
explained that the “central issue in th[e] appeal” was
“whether
Justus
has
shown
‘extraordinary
circumstances’ entitling him to Rule 60(b)(6) relief and
equitable tolling of his federal habeas petition,” which
the court largely considered together. Pet. App. 29a.
The court recognized 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[,]” but it reasoned that “given the
posture of this case, . . . if Justus’s mental illness
satisfies the equitable tolling ‘extraordinary
circumstances’ standard, it should also demonstrate
‘extraordinary circumstances’ under Rule 60(b)(6).”
Pet. App. 30a.
10
After reviewing the evidence, the court of appeals
held that, “[a]t a minimum, this evidence warrants
further exploration into Justus’s mental state during
the relevant time period.” Pet. App. 35a. In the
habeas context, the court explained that a petitioner’s
mental illness constitutes an extraordinary
circumstance “if it renders him unable to comply with
the filing deadline.” Pet. App. 32a. It reasoned that
“while a petitioner’s institutionalization or adjudged
incompetence is certainly relevant to an equitable
tolling analysis, it is not required.” Pet. App. 33a.
Instead, “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.” Id. Here,
the court observed that “Justus has provided
extensive evidence that he is severely mentally ill.”
Pet. App. 34a. And, in particular, he has shown that
“a feature of [his] 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.”
Pet. App. 34a–35a.
The court of appeals thus concluded that “the
district court abused its discretion in failing to hold an
evidentiary hearing.” Pet. App. 37a. The court of
appeals remanded the case to the district court “to
determine whether Justus’s mental illness constitutes
an ‘extraordinary circumstance’ that warrants Rule
60(b)(6) and equitable tolling relief” and, if so, whether
“any remaining factors in the Rule 60(b)(6) and
equitable tolling analysis” are met. Id. & n.10.
11
b. Judge Niemeyer dissented. Pet. App. 39a–50a.
Judge Niemeyer did not endorse the district court’s
apparent requirement of institutionalization or
adjudged incompetence for equitable tolling. But he
disagreed with the majority’s conclusion that “if
Justus’s mental illness satisfies the equitable tolling
‘extraordinary circumstances’ standard, it should also
demonstrate ‘extraordinary circumstances’ under
Rule 60(b)(6).” Pet. App. 41a. And he explained that,
in his view, the evidence was insufficient for the
district court to conclude that Justus’s mental illness
prevented him from timely filing his petition. Pet.
App. 42a.
REASONS FOR DENYING THE WRIT
Petitioner urges this Court to grant review to
determine “the showing that a federal habeas
petitioner must make to reopen a judgment based on
mental illness.” Pet. 1. But the court of appeals held
only that Justus has made an evidentiary showing
sufficient to warrant a hearing into whether his
undisputed chronic mental illness constitutes an
extraordinary circumstance for purposes of Rule
60(b)(6) relief and equitable tolling of AEDPA’s
statute of limitations. The court did not reach any
conclusion on even those questions, much less
determine whether any final judgment should
ultimately be reopened.
The court of appeals’ narrow, fact-bound decision
does not warrant this Court’s review. Petitioner’s
claim of a conflict among the courts of appeals is
illusory. None of the cases on which petitioner relies
12
even addresses the standard for showing
“extraordinary circumstances” under Rule 60(b)(6),
and none adopts any categorical rules that suggest a
different result here on the equitable tolling question
either. Moreover, even if the question presented
warranted this Court’s attention, this case would be a
poor vehicle for addressing it, among other reasons,
because of the developing factual record. And, in any
event, the court of appeals’ decision was correct. The
petition should be denied.
I. The Decision Below Does Not Implicate Any
Conflict Among the Courts of Appeals.
Petitioner contends (Pet. 11–18) that the courts of
appeals are split on the showing a habeas petitioner
must make to warrant relief under Rule 60(b)(6) and
equitable tolling relief based on mental illness. But
petitioner does not cite a single court of appeals
published decision applying the Rule 60(b)(6)
standard, let alone decisions showing a conflict in the
application of that standard. And the equitable tolling
decisions on which petitioner relies likewise do not
reflect a conflict on either the legal standard or the
results reached.
On the contrary, the courts of appeals widely apply
the same fact-intensive standard for deciding
equitable tolling under AEDPA. And none gives
talismanic significance to the two facts on which
petitioner relies to argue that the equitable tolling
standard cannot be satisfied here. Absent a showing
that the courts of appeals are consistently applying
the Rule 60(b)(6) or equitable tolling standard
13
differently to similarly situated habeas petitioners,
this Court’s intervention is unwarranted.
A. The Circuits Agree on the Legal Standard
for Equitable Tolling under AEDPA.
The courts of appeals widely hold—including the
Sixth, Seventh, and Tenth Circuits—that a habeas
petitioner is entitled to equitable tolling of AEDPA’s
statute of limitations if he establishes (1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and
prevented timely filing. See, e.g., Jones v. Lumpkin,
22 F.4th 486, 490 (5th Cir. 2022); Watkins v. DeangeloKipp, 854 F.3d 846, 851 (6th Cir. 2017); Head v.
Wilson, 792 F.3d 102, 106 (D.C. Cir. 2015); Rudin v.
Myles, 781 F.3d 1043, 1054 (9th Cir. 2015); Obriecht v.
Foster, 727 F.3d 744, 748 (7th Cir. 2013); Melson v.
Comm’r, 713 F.3d 1086, 1089 (11th Cir. 2013);
Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir. 2012);
Harper v. Ercole, 648 F.3d 132, 136 (2d Cir. 2011);
Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011);
Riva v. Ficco, 615 F.3d 35, 39 (1st Cir. 2010); Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
The courts of appeals also widely hold, as the court
below did, that a habeas petitioner’s mental illness
may constitute such an extraordinary circumstance
when it caused the petitioner’s failure to timely file his
petition. See Watkins, 854 F.3d at 851 (stating a
petitioner’s mental incompetence can constitute an
extraordinary circumstance that warrants equitable
tolling when “(1) he is mentally incompetent and
(2) his mental incompetence caused his failure to
14
comply with AEDPA’s statute of limitations”);
Obriecht, 727 F.3d at 750–51 (stating mental illness
may support equitable tolling “if the illness in fact
prevents the sufferer from managing his affairs and
thus from understanding his legal rights and acting
upon them”); see also Smith v. Saffle, 28 F. App’x 759,
760 (10th Cir. 2001) (“Equitable tolling based on
mental incapacity is limited to ‘exceptional
circumstances.’”).
Petitioner has failed to identify a single published
decision of any court of appeals that adopted a
different legal standard.
That failure alone is
sufficient grounds to deny the petition. “A petition for
a writ of certiorari is rarely granted when the asserted
error consists of . . . the misapplication of a properly
stated rule of law.” S. Ct. R. 10. Petitioner provides
no sound reason for the Court to depart from that
ordinary practice here.
B. Petitioner Fails to Show Any Conflict in
the Circuits’ Application of that Standard.
Petitioner nonetheless asserts that the decision
below conflicts with decisions of several other circuits
by arguing that those courts have given talismanic
significance to two asserted facts: (1) the habeas
petitioner’s ability to file other litigation documents
during the requested period of equitable tolling and
(2) the habeas petitioner’s inability (at least prior to
an evidentiary hearing) of producing direct evidence of
mental illness during the same period. Pet. 13–15,
15–18. Neither argument withstands scrutiny. As
this Court has recognized, the determination of
15
whether a petitioner is entitled to equitable tolling is
fact-intensive and must be made on a case-by-case
basis. Holland v. Florida, 560 U.S. 631, 649–50, 654
(2010). And each of the decisions on which petitioner
relies adopts that fact-intensive approach.
1.
Petitioner first argues that the Sixth,
Seventh, and Tenth Circuits hold that a habeas
petitioner’s ability to file other documents during the
limitations period precludes a finding that the
petitioner’s mental illness was an extraordinary
circumstance that prevented him from timely filing
his habeas petition. None does.
a. In Obriecht v. Foster, 727 F.3d 744, 751 (7th Cir.
2013), the Seventh Circuit held that the petitioner
failed to establish that an extraordinary circumstance
prevented him from timely filing his petition.
Although the petitioner claimed in the district court
that both his attorney’s conduct and his mental health
constituted extraordinary circumstances, the court
recognized that the petitioner only developed
arguments with respect to his attorney’s conduct and,
therefore, the district court did not consider whether
his mental health constituted an extraordinary
circumstance. Id. at 748. “Because [the petitioner]
failed to develop any argument concerning his mental
health as an extraordinary circumstance in the
district court, [the court of appeals] [did] not address
it[.]” Id. at 748–49.
The court noted that the petitioner “offered only
the conclusory statements that he suffered from
mental health problems and was incarcerated in [a
16
mental health facility]” but “ha[d] not explained, or
provided evidence to demonstrate, how these two facts
actually impaired his ability to pursue his claims.” Id.
at 751. The court further reasoned that the record
“casts doubt on [the petitioner’s] claim that these two
circumstances prevented him from filing” during the
limitations period. Id. The court pointed to evidence
in the record that the petitioner was adjudicated
competent to represent himself in his probation
revocation proceeding approximately eighteen months
before he filed his federal habeas claims, the petitioner
was “very occupied with two other criminal appeals”
that prevented him from timely pursuing his federal
claims, and the petitioner “filed briefs, motions and
habeas petitions in at least five other state court
actions, timely challenging other convictions” during
the period that he asserted his mental health
prevented him from timely pursuing his federal claims
without explaining why he could timely file in those
cases but not in the case before it. Id.
Importantly, the court did not conclude that the
mere fact that the petitioner made other court filings
casted doubt on or otherwise precluded a finding that
his mental health prevented him from timely pursuing
his claims. The court specifically requested copies of
the papers that the petitioner filed in other cases
during the limitations period and “[a]fter a review of
these documents, [the court] [found] no prima facie
evidence of incapacity.” Id. at 751 n.13. The court
held that equitable tolling was not warranted based
on this evidence and the other record evidence
discussed above.
17
Conroy v. Thompson, 929 F.3d 818 (7th Cir. 2019),
is similar. There, the petitioner argued that he was
entitled to equitable tolling due to his illiteracy,
emotional issues, and schizoaffective disorder. Id. at
820. The court held that the petitioner failed to
provide evidence showing that his mental issues
actually prevented him from pursuing his claims
during the limitations period. Id. at 821. The court
reasoned that the petitioner was found competent to
stand trial shortly before the limitations period began
and he did “not provide[] evidence establishing that
his mental issues drastically deteriorated” thereafter;
in fact, “the record reveal[ed] that the opposite [was]
true.” Id. But, the court identified the evidence that
showed the petitioner’s mental condition did not
deteriorate after he was adjudged competent,
including psychiatry notes and “several” motions and
petitions that the petitioner filed during the
limitations period. Id. The court explained that “most
damning of all, [the petitioner] originally attributed
his failure to timely file his habeas petition not to
mental limitation, but to the fact that he was unaware
of time limits.” Id.
In Conroy, the Seventh Circuit again did not hold
that the mere fact that the petitioner made other court
filings during the limitations period precluded
equitable tolling relief. Instead, the petitioner’s court
filings were one of several pieces of evidence that the
court relied on in concluding that the petitioner failed
to show his mental illness was an extraordinary
circumstance that prevented him from timely filing
his petition. The petitioner in Conroy did not provide
evidence showing, and the record refuted, that his
18
mental condition drastically deteriorated after he was
adjudged competent to stand trial.
b. Petitioner relies on a single decision to argue
that the Sixth Circuit has adopted a categorical rule
that a petitioner’s other court filings during the
limitations period precludes equitable tolling based on
mental illness. In Watkins, the district court equitably
tolled the AEDPA limitations period due to the
petitioner’s mental illness, relying only on evidence
that he was diagnosed with “Psychotic Disorder NOS”
and given a treatment plan that included therapy and
medication. 854 F.3d at 852. The Sixth Circuit held
that the petitioner failed to show he was entitled to
equitable tolling based on his mental illness. Id. But
the court did not rest that conclusion on any single fact
or piece of evidence. Instead, the court reasoned that
there was no evidence that the petitioner’s diagnosis
altered the prior adjudication that the petitioner was
competent or that his mental condition caused his
untimely filing. Id.
To be sure, the court also noted that the evidence
suggested that his mental condition did not cause his
timely filing, pointing to three timely court filings the
petitioner made during the limitations period and
reasoning “[t]hat he was able to make these timely
filings indicates that his mental illness was not the
cause of his untimely amended habeas petition.” Id.
But the court did not purport to announce a rule that
such filings categorically preclude equitable tolling,
only that they contributed to the court’s conclusion.
Indeed, the Sixth Circuit continues to recognize that
“the propriety of equitable tolling must necessarily be
19
determined on a case-by-case basis[.]” Zappone v.
United States, 870 F.3d 551, 557 (6th Cir. 2017).
c. Finally, petitioner relies on a nearly 30-year-old
decision from the Tenth Circuit concerning the
availability of equitable tolling not under AEDPA, but
Title VII of the Civil Rights Act of 1964. See Biester v.
Midwest Health Serv. Inc., 77 F.3d 1264 (10th Cir.
1996). To the extent that case has any bearing at all
on the question, it does not advance petitioner’s cause.
In Biester, the court of appeals declined to
equitable toll Title VII’s 90-day period to file suit
following receipt of a right-to-sue notice from the
Equal Employment Opportunity Commission. Id. at
1265. The court expressly recognized that it had not
previously determined whether “mental incapacity”
could toll the limitations period and held that, “under
the facts presented by th[at] case, it [wa]s unnecessary
to reach that issue.” Id. at 1268. The court relied not
on any one fact, but emphasized that the evidence as
a whole demonstrated that the plaintiff was capable of
pursuing his own claim in spite of his mental condition
and that he was represented by counsel throughout
the entire limitations period who “knew well in
advance of the 90-day time limit that plaintiff had
received the right to sue notice.” Id. 2
Petitioner also argues that the decision below conflicts with
unpublished decisions of the Second and Fifth Circuits. Pet. 14–
15. Such nonprecedential decisions cannot create a conflict.
Regardless, they also do not conflict with the decision below. In
both cases, the Second and Fifth Circuits applied the same
standard for equitable tolling as the court below but concluded
that the particular facts of each case did not satisfy that
2
20
2. Petitioner fares no better in arguing that the
Sixth, Seventh, and Tenth Circuits also hold that a
habeas petitioner must present direct evidence of his
mental illness during the limitations period to show
that his illness constituted an extraordinary
circumstance justifying equitable tolling. See Pet. 15–
18 (citing Watkins, supra; Mayberry v. Dittman, 904
F.3d 525, 530–31 (7th Cir. 2018); Fisher v. Gibson, 262
F.3d 1135, 1145 (10th Cir. 2001)).
a. As already explained, in Watkins, the Sixth
Circuit took a comprehensive view of the evidence in
concluding that the habeas petitioner failed to show
he was entitled to equitable tolling. To be sure, the
court observed that, although the petitioner argued
that his diagnosis with psychotic disorder two years
before the limitations period “carried over into the
limitations period,” there was no evidence indicating
that this diagnosis altered the previous evaluation
deeming the petitioner competent. Id. at 852. But it
further reasoned that the petitioner was given a
treatment plan and “even assuming that failure to
comply with the treatment plan would render him
incompetent, [the petitioner] does not allege that he
failed to comply with the plan.” Id. The court also
explained that, beyond those facts, there was simply
standard. See Rios v. Mazzuca, 78 F. App’x 742, 743 (2d Cir.
2003); Jones v. Stephens, 541 F. App’x 499, 503 (5th Cir. 2013).
Like their sister circuits, the Second and Fifth Circuits have both
expressly recognized that “whether a person is sufficiently
mentally disabled to justify tolling of a statute of limitations is .
. . highly case-specific.” Rios, 78 F. App’x at 744; see Henderson
v. Thaler, 626 F.3d 773, 778–79 (5th Cir. 2010) (the equitable
tolling analysis is a “fact-intensive inquiry” that must be decided
“on a case-by-case basis”).
21
no evidence that the petitioner’s mental condition
caused his untimely filing and the evidence in fact
suggested the opposite conclusion. Id.
If there were any question whether the Watkins
decision was specific to the record before it, the court’s
reliance on its previous decision in Ata v. Scutt, 662
F.3d 736 (6th Cir. 2011), would remove all doubt.
There, the same court held that the district court had
erred in failing to hold an evidentiary hearing to
determine whether the petitioner was entitled to
equitable tolling based on his mental incompetence.
Id. at 738. The Sixth Circuit reasoned that the
petitioner’s allegations, if true, showed that the
petitioner is mentally incompetent and that his
incompetence prevented him from timely filing his
petition. Id. at 743. But the only medical records
presented in Ata were from prior to the limitations
period. The court nonetheless reasoned that “the
record corroborate[d] [the petitioner]’s allegations of
mental incompetence preventing timely filing, as [the
petitioner]’s diagnosis of paranoid schizophrenia
presents a lifelong condition with an accompanying
regimen of medication.” Id. at 744. As the Fourth
Circuit did here, it thus remanded the case to the
district court for an evidentiary hearing on whether he
was entitled to equitable tolling. Id. at 745.
b. Petitioner also incorrectly relies on Mayberry v.
Dittman, 904 F.3d 525 (7th Cir. 2018), to assert that
the Seventh Circuit holds that evidence of mental
illness from outside the limitations period cannot
support equitable tolling. In concluding that the
petitioner failed to show his mental disability
22
prevented him from timely filing his habeas petition,
the Mayberry court did reason that “[t]he problem
with [the petitioner]’s claim is that so little of his
evidence of his mental disability sheds light on the
relevant time period for purposes of tolling.” Id. But
that conclusion was a function of the specific evidence
that the petitioner relied on in that case, not any
categorical rule. And it was correct. The petitioner
had relied on evidence that he was in a car accident
three decades prior to the limitations period, he was
enrolled in special education classes prior to dropping
out of school, and a psychological evaluation from
more than ten years prior to the limitations period that
concluded the petitioner had a low IQ. Id. at 530.
That evidence bears no resemblance to the evidence in
record here.
c. Finally, petitioner relies on Fisher v. Gibson,
262 F.3d 1135 (10th Cir. 2001), to assert that the
Tenth Circuit has adopted a categorical rule against
tolling without evidence of mental incapacity from
within the limitations period. In Fisher, the petitioner
filed a federal habeas petition alleging that he was
incompetent at the time of each of his three guilty
pleas. Id. at 1141. The court reasoned, however, that
by pleading guilty, the petitioner conceded that he was
legally competent and that in all three plea
proceedings, the petitioner’s lawyer represented that
the petitioner was competent at the time of the plea
and the trial judge made his own observations of the
petitioner’s competence. Id. at 1143–44. It was that
record that the court described as containing “no basis
to disregard these consistent indicia of competency”
23
because it only contained mere conclusory allegations
that the petitioner was incompetent. 3 Id. at 1144–45.
3. None of these decisions suggests that this
appeal would have been resolved differently in any
other circuit.
In Obriecht and Watkins, the Seventh and Sixth
Circuits concluded the petitioner was not entitled to
equitable tolling in part because the petitioner timely
filed other court documents during the limitations
period. See Obriecht, 727 F.3d at 751; Watkins, 854
F.3d at 852. But here, all three of Justus’s filings
during the limitations period were deemed untimely.
JA65–67; Pet. App. 51a–61a. There is nothing in these
circuits’ decisions that suggests they would have
reached the same conclusion had the petitioners’
filings during the limitations period been untimely—
if anything, these decisions suggest that they would
have reached a different conclusion. Indeed, the Sixth
Circuit expressly recognized in Watkins that “the
relevant inquiry is whether petitioner’s mental
incompetency prevented him from filing a timely
3 Petitioner also argues that the decision below conflicts with an
unpublished decision in the Eighth Circuit, Collins v. Scurr, 2000
U.S. App. LEXIS 23550 (8th Cir. Sept. 19, 2000). The Eighth
Circuit’s nonprecedential, three-paragraph decision in Collins
cannot and does not conflict with the decision below. The Eighth
Circuit applied the same standard as the court below but
concluded that the facts in that case did not satisfy that standard.
Id. at *1–2. Indeed, the Eighth Circuit recognizes that “[w]hether
equitable tolling is appropriate is a fact intensive inquiry that
depends on the totality of the circumstances present in a
particular case.” Martin v. Fayram, 849 F.3d 691, 698 (8th Cir.
2017).
24
petition[.]” 854 F.3d at 852. And in Obriecht, the
Seventh Circuit obtained and reviewed copies of the
petitioner’s extensive court filings and found no prima
facie evidence of incapacity, supporting that its
conclusion was not based on the mere fact of the
filings. 727 F.3d at 751 n.13.
More broadly, the record evidence of the habeas
petitioner’s mental condition in the decisions on which
petitioner relies was very different than the record
evidence in this case. In Obriecht and Fisher, for
example, the petitioner relied on mere conclusory
assertions of incompetency. See Obriecht, 727 F.3d at
751; Fisher, 262 F.3d at 1145. Here, Justus submitted
substantial evidence that he suffers from a severe
mental illness that significantly impedes his
functioning, going well beyond conclusory and
speculative allegations.
Similarly, the evidence
presented in Mayberry merely showed the petitioner
was in a car accident three decades prior to the
limitations period, he was enrolled in special
education classes prior to dropping out of school, and
a psychological evaluation from more than ten years
prior to the limitations period that concluded the
petitioner had a low IQ—none of which suggests a
mental disability so severe such that it may have
prevented him from timely filing his petition during
the limitations period. 904 F.3d at 530–31.
Moreover, it was critical to the courts’ analyses in
Conroy, Watkins, and Fisher that the petitioners had
been adjudged competent and did not provide any
evidence that their mental condition deteriorated
after this adjudication. See Conroy, 929 F.3d at 821;
25
Watkins, 854 F.3d at 852; Fisher, 262 F.3d at 1144.
Justus, however, presented significant evidence that
his mental illness drastically deteriorated after he was
declared competent to stand trial, diminishing the
probative value of his competency adjudications from
several years before the limitations period. And he
bolstered this evidence with substantial evidence of
the lifelong nature of his particular mental illness—a
feature of which is frequent periods of medical
noncompliance during which the illness greatly
impedes his ability to function.
In short, each of petitioner’s authorities are
consistent with this Court’s recognition in Holland
that “[t]here are no bright lines in determining
whether equitable tolling is warranted in a given case.
Rather, the particular circumstances of each
petitioner must be taken into account.” Pabon v.
Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011) (citing
Holland, 560 U.S. at 649–50); see also, e.g., Jones, 22
F.4th at 490 (stating equitable tolling “turns on the
facts and circumstances of a particular case”). “‘[T]he
exercise of a court’s equity powers must be made on a
case-by-case
basis,’
mindful
‘that
specific
circumstances, often hard to predict in advance, could
warrant special treatment in an appropriate case.’”
Harper, 648 F.3d at 136 (quoting Holland, 560 U.S. at
649–50). “[W]hile prior decisions provide guidance,
rigid reliance on precedent should be avoided.” Pabon,
654 F.3d at 399 (citing Holland, 560 U.S. at 649–50).
Petitioner has failed to show that any other circuit
would have reached a different conclusion on these
facts. On that basis too, this Court’s review is
unwarranted.
26
II. This Case Would Be a Poor Vehicle to Address
the Question Presented.
Even if the Court were inclined to wade into the
fact-bound analysis governing what circumstances are
sufficiently “extraordinary” to warrant Rule 60(b)(6)
and equitable tolling relief, this case is an unsuitable
vehicle to address that question for several reasons.
First, even on petitioner’s view of the law, this case
does not even implicate the illusory split petitioner
proffers. Although petitioner claims that the circuits
are divided on the “proper standard for Rule 60(b)(6)
motions,” to demonstrate that conflict, petitioner
relies exclusively on cases addressing the standard for
equitable tolling.
To be sure, the Fourth Circuit equated the two
standards in the circumstances of this case. Pet. App.
29a–30a. But petitioner faults the court for doing so.
See Pet. 11 (criticizing the court of appeals for
“collaps[ing] the ‘extraordinary circumstances’
analyses of Rule 60(b)(6) and equitable tolling”).
If petitioner is right, the Court would be unlikely
to reach the equitable tolling question at all. The Rule
60(b)(6) inquiry is logically antecedent to the equitable
tolling question. A habeas petitioner like Justus—
who is seeking reconsideration of a closed federal
judgment denying his habeas petition—would be
unable to raise an equitable tolling argument related
to the underlying petition if his motion for
reconsideration was not first deemed to satisfy Rule
60(b)(6)’s “extraordinary circumstances” standard.
27
If the Court is interested in providing guidance on
the equitable tolling standard in these circumstances,
it should wait for a vehicle where the question is
squarely presented, not one where the petitioner’s
arguments suggest that the Court should not reach it
at all.
Second, the interlocutory nature of the Fourth
Circuit’s order and the ongoing proceedings in the trial
court make this case an unsuitable vehicle for review
now. This Court’s “general[]” practice is to “await final
judgment in the lower courts before exercising [its]
certiorari jurisdiction.” Virginia Mil. Inst. v. United
States, 508 U.S. 946, 946 (1993) (Scalia, J., statement
respecting denial of certiorari); see also Mount Soledad
Mem’l Ass’n v. Trunk, 567 U.S. 944, 945 (2012) (Alito,
J., statement respecting denial of certiorari)
(concurring in denial of petitions because “[t]he
current petitions come to us in an interlocutory
posture”). And that general practice makes particular
sense here.
In the decision below, the Fourth Circuit did not
hold that either Rule 60(b)(6) relief or equitable tolling
relief should be granted here, much less habeas relief.
It remanded for an evidentiary hearing to
substantiate Justus’s claims of mental illness and
determine whether his “mental illness constitutes an
‘extraordinary circumstance’ that warrants Rule
60(b)(6) and equitable tolling relief.” Pet. App. 37a.
Those proceedings are ongoing, and an evidentiary
hearing is scheduled for May 1, 2024—before merits
briefing would be completed or argument would occur
in this Court.
28
Even if the Court were inclined to address the
question presented, it should allow the lower courts to
actually resolve Justus’s extraordinary circumstances
claims in the first instance before granting review. At
a minimum, these further proceedings would allow the
Court to consider a more comprehensive factual record
when and if it wishes to provide guidance to lower
courts on the exceedingly fact-bound questions
presented in this case. Moreover, permitting the
proceedings to be completed before considering further
review would also ensure that the appeal is not mooted
before this Court could resolve the case.
Third, in all events, this case would be a
particularly unhelpful vehicle for establishing broadly
applicable principles of law because of the unique set
of facts. The Fourth Circuit made clear that it was
responding to the extraordinary evidence of mental
illness in this case. It explained, for example, that the
case “likely ‘cries out for the exercise of that equitable
power to do justice’” in light of the “evidence and
allegations of [Justus’s] severe and continuing mental
illness.” Pet. App. 37a (citation omitted). And it
recognized that “Rule 60(b)(6) . . . ‘provides the court
with a grand reservoir of equitable power to do justice
in a particular case.’” Id. (citation omitted) (emphasis
added).
Indeed, it is undisputed that Justus himself has
demonstrated he suffers from severe mental illness.
As the Fourth Circuit noted, “Justus was twice found
incompetent to stand trial, and was twice admitted to
Central State Hospital for treatment to restore his
competency.” Pet. App. 3a. “There he was diagnosed
29
with Schizoaffective Disorder,” and “this diagnosis
was later changed to Bipolar Disorder (Most Recent
Episode Mixed, with Psychosis).” Id. Contrary to
petitioner’s contention, the Fourth Circuit’s ruling will
thus not result in habeas petitioners’ widespread use
of “a large loophole” to leverage unsubstantiated
claims of mental illness to “render AEDPA’s strict
time limits effectively meaningless.” Pet. 19. And this
would be a particularly odd vehicle to resolve the reach
of Rule 60(b)(6) or equitable tolling.
III. The Court of Appeals’ Decision Is Correct.
Finally, the Court should deny review because the
decision below is correct. This Court has held that
extraordinary circumstances may equitably toll the
statute
of
limitations
period
when
those
circumstances stood in the petitioner’s way and
prevented timely filing. See Holland, 560 U.S. at 649.
“A habeas petitioner . . . should receive an evidentiary
hearing when he makes ‘a good-faith allegation that
would, if true, entitle him to equitable tolling.’” Roy v.
Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (citation
omitted); see Fleming v. Evans, 481 F.3d 1249, 1256–
57 (10th Cir. 2007); Hunter v. Ferrell, 587 F.3d 1304,
1309–10 (11th Cir. 2009).
The Fourth Circuit properly applied Holland when
it concluded that Justus’s allegations and evidence of
profound mental incapacity that stood in the way of
his timely filing were sufficient to warrant an
evidentiary hearing to further develop the record. If
Justus’s allegations of mental incapacity are true, he
would be entitled equitable tolling of his habeas
30
petition under that decision.
Justus “provided
evidence strongly suggesting that he lacks the ability
to timely file a habeas petition during periods of
nontreatment.”
Pet. App. 35a (summarizing
evidence). This evidence of circumstances that would
prevent Justus from filing on time is exactly what he
needs to demonstrate entitlement to equitable tolling.
Holland, 560 U.S. at 649. And this same evidence of
chronic mental illness would also show the
“extraordinary circumstances” that warrant Rule
60(b)(6) relief. See Klapprott v. United States, 335
U.S. 601, 607–14 (1949) (finding a four-year gap
timely where the party was incarcerated, ill, and
lacked the ability to hire counsel).
In arguing to the contrary, petitioner principally
asserts that, in the case of mental illness, equitable
tolling should require “institutionalization or
adjudged mental incompetence.” Pet. 22. But no court
of appeals has adopted this standard. Instead, the
courts of appeals agree that mental illness may
constitute an extraordinary circumstance to warrant
equitable tolling if it prevented the petitioner from
timely filing his petition. See Ata, 662 F.3d at 741;
Riva v. Ficco, 615 F.3d 35, 49 (1st Cir. 2010) (finding
that mental illness can equitably toll the limitations
period when the habeas petitioner “can show that,
during the relevant time frame, he suffered from a
mental illness or impairment that so severely
impaired his ability . . . effectively to pursue legal
relief”); Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th
Cir. 2009) (noting that a petitioner’s mental
impairment may warrant equitable tolling if it
31
“affected the petitioner’s ability to file a timely habeas
petition”).
And numerous courts of appeals decisions are
inconsistent with petitioner’s unrealistic standard.
See, e.g., Perry v. Brown, 950 F.3d 410, 414 (7th Cir.
2020) (remanding for an evidentiary hearing when
habeas petitioner presented evidence of global
aphasia, but no history of institutionalization); Nara
v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (remanding
for an evidentiary hearing when the habeas petitioner
“presented evidence of ongoing, if not consecutive,
periods of mental incompetency,” but no history of
institutionalization), overruled in part on other
grounds by Carey v. Saffold, 536 U.S. 214 (2002); Laws
v. Lamarque, 351 F.3d 919, 923–24 (9th Cir. 2003)
(remanding for an evidentiary hearing even though
the habeas petitioner did not present a history of
institutionalization).
Petitioner’s rigid rule is also the antithesis of the
fact-intensive, case-by-case approach this Court
requires.
Holland, 560 U.S. at 649–51.
It is
unsupported by the decisions of any circuit. And it
provides no basis for disturbing the court of appeals’
decision here.
32
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be denied.
Respectfully Submitted,
Kelly A. Warlich
MCGUIREWOODS LLP
201 N. Tryon St
Suite 3000
Charlotte, NC 28202
Joshua D. Wade
Kate C. Ashley
MCGUIREWOODS LLP
800 E. Canal St.
Richmond, VA 23219
FEBRUARY 15, 2024
Jonathan Y. Ellis
Counsel of Record
APPELLATE JUSTICE
INITIATIVE AT
MCGUIREWOODS LLP
888 16th Street N.W.
Suite 500
Washington, DC 20006
(202) 828-2887
jellis@mcguirewoods.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.