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Seventh Circuit Holds Brain Injury May Allow Equitable Tolling to File Late Habeas Petition

by Dale Chappell

The U.S. Court of Appeals for the Seventh Circuit held on February 12, 2020, that a brain injury resulting from a stroke may be an “extraordinary circumstance” that could allow “equitable tolling” of the one-year clock for filing a petition for habeas corpus.

DeWayne Perry filed a habeas corpus petition in Indiana state court to attack his conviction and sentence for murder. Because he had suffered a stroke and was left aphasic — meaning he cannot speak and struggles to understand words — the state court appointed counsel to help him pursue his claims. That lawyer, however, abandoned Perry and did nothing for him. The court never appointed another lawyer.

Perry then asked the court to dismiss his petition without prejudice so that he could file another one after he found another lawyer who would help him. When Perry did file another petition later, the court dismissed it as an improper second petition, since his first was dismissed with prejudice. Perry then filed a habeas corpus petition in federal court, which was summarily dismissed as untimely filed. The district court judge ruled that Perry’s aphasia was not an “external obstacle” to allow equitable tolling. Perry appealed.

While Perry conceded that his petition was late, he argued on appeal that his brain injury (stroke) allowed “equitable tolling” to make his petition timely. The Seventh Circuit has held that some mental limitations do support equitable tolling. The question before the Court here was whether Perry’s inability to use or understand words because of his aphasia could allow equitable tolling. The Supreme Court held in Holland v. Florida, 560 U.S. 631 (2010), that “extraordinary circumstances” could allow equitable tolling in certain cases.

The State argued that because Perry’s court filings were articulate, equitable tolling should not apply. “But this tells us more about Perry’s lawyers than about Perry,” the Court said, noting that Perry’s papers had been amended and filed by volunteer lawyers. The Court concluded that the district court should have investigated further into Perry’s aphasia to see if it was an obstacle, being that he failed to understand that his first petition was dismissed with prejudice (and not without prejudice) to bar another petition.

The Court also rejected the State’s argument that Perry’s claim was procedurally defaulted because his collateral review lawyer (the one who abandoned him) never raised it when he should have. Citing the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012), the Court said the record implies that “Perry received ineffective (really, no) legal aid in pursuing collateral review” when the claim should have been raised and that the ineffective assistance by collateral review counsel in failing to raise the claim may excuse procedural default of the claim.

But because the record is “scanty,” the Court remanded for the district court to determine “whether circumstances as a whole justify equitable tolling.” In particular, the Court instructed that the [d]ecision will depend on medical evidence that the record lacks” and that “it is appropriate for the district court to appoint counsel to assist him.”

Accordingly, the Court vacated the judgment and remanded for proceedings consistent with this opinion. See: Perry v. Brown, 2020 U.S. App. LEXIS 4401 (7th Cir. 2020). 

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Related legal case

Perry v. Brown



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