Tolling – Appointment of Counsel

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7^th Circuit Court of Appeals

Case Name: Anastazia Schmid v. Steven McCauley

Case No.: 14-2974

Officials: POSNER, EASTERBROOK, and ROVNER, Circuit Judges.

Focus: Tolling – Appointment of Counsel

Appellant not appointed counsel and missed deadline to bring §2254 proceedings

“As in Christeson this suggests that the district court’s first step should have been to appoint counsel for Schmid under 18 U.S.C. §3006A(a)(2)(B). (Christeson dealt with 18 U.S.C. §3599, which uses the same standard as §3006A(a)(2)(B).) Counsel could have investigated Schmid’s mental condition and explored the contents of prior counsel’s files, formulating an explanation for delay satisfactory to the district judge. We remand this case with directions to appoint counsel and, if appropriate, hold an evidentiary hearing. Decisions about equitable tolling under §2244(d) are reviewed deferentially on appeal, whether the district court finds tolling warranted or unwarranted. See Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010); Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008). We have not applied that deferential standard here, however, because the district court did not gather the evidence needed for decision. Nor did the court consider whether a hearing is necessary. Once counsel has had a chance to present the best arguments from Schmid’s perspective, the district court should apply the approach of decisions such as Estremera, 724 F.3d at 775–76; Davis v. Humphreys, 747 F.3d 497 (7th Cir. 2014); and Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013), to determine whether a hearing is in order”

Vacated and Remanded

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