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.

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