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Equitable Tolling

By: Derek Hawkins//March 23, 2020//

Equitable Tolling

By: Derek Hawkins//March 23, 2020//

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7th Circuit Court of Appeals

Case Name: DeWayne Perry v. Richard Brown, Warden, Wabash Valley Correctional Facility

Case No.: 19-1683

Officials: BAUER, EASTERBROOK, and BRENNAN, Circuit Judges.

Focus: Equitable Tolling

DeWayne Perry, serving a long sentence for murder, suffers from aphasia, which impairs his ability to speak, write, and understand words. A stroke in 2009 caused Perry’s aphasia, a condition that ranges from moderate limitations to complete disability. How limiting Perry’s aphasia is today—or was in 2016 and 2017— is a central but unresolved issue in this litigation.

Perry pursued both direct and collateral review in Indiana’s courts. A lawyer was appointed to represent him on the collateral attack, but as far as we can see the lawyer did nothing for him and eventually bailed out, leaving Perry unrepresented. Assisted in this appeal by volunteers from an esteemed law firm, Perry tells us that, after his former lawyer quit and the state judge denied his request for more time, he tried to dismiss his collateral attack without prejudice so that he could obtain assistance and mount a better challenge. Five months after dismissing the state proceeding, he refiled it, adding new legal theories. But the state judge dismissed the renewed application, ruling that the original dismissal had been with prejudice. Perry then filed in federal court a petition under 28 U.S.C. §2254, only to have it summarily dismissed.

Procedural defaults may be excused under some circumstances. A brain injury that prevents a prisoner from complying with the state’s rules for prosecuting collateral attacks may be one such circumstance. We need not decide, because ineffective assistance of counsel in pursuing an ineffective assistance claim is another, when the state funnels ineffective-assistance claims to collateral review yet does not furnish the prisoner with a second lawyer to review the first’s performance. See Martinez v. Ryan, 566 U.S. 1 (2012); Trevino v. Thaler, 569 U.S. 413 (2013). We held in Brown v. Brown, 847 F.3d 502, rehearing en banc denied, 869 F.3d 507 (7th Cir. 2017), that Indiana is such a state. The scanty record assembled to date implies that Perry received ineffective (really, no) legal aid in pursuing collateral review and therefore did not receive in state court the sort of help that would enable Indiana to use his procedural default to block federal review of an ineffective-assistance claim.

The district court needs to determine whether a brain injury caused Perry’s delay in seeking review under §2254, and if so whether circumstances as a whole justify equitable tolling. Once such a decision has been made, appellate review will be deferential, see Mayberry, 904 F.3d at 530, but we cannot act on the district judge’s behalf. Decision will depend on medical evidence that the record lacks. Because Perry’s aphasia could frustrate his ability to gather and present such evidence on his own, it is appropriate for the district court to appoint counsel to assist him. See 18 U.S.C. §3006A(a)(2)(B); Schmid, 825 F.3d at 350.

The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.

Vacated and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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