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Fourth Circuit: Evidentiary Hearing Required Where Prisoner’s Allegation of Mental Illness, if True, Is Sufficient to Demonstrate ‘Extraordinary Circumstances’ Warranting Both Rule 60(b)(6) Relief and Tolling of Habeas SOL

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that an evidentiary hearing was required where Berman Justus, Jr.’s, allegation of mental illness, if true, was sufficient to demonstrate extraordinary circumstances warranting relief under Rule 60(b)(6) of the Federal Rules of Civil Procedure and equitable tolling of the statute of limitations (“SOL”) governing habeas petitions.

Justus shot and killed his estranged wife and her boyfriend. He was charged with capital murder. He was twice found incompetent to stand trial and, on both occasions, he was admitted to Central State Hospital for treatment to restore his competency. He was diagnosed with schizoaffective disorder and bipolar disorder – both diagnoses being functionally similar to psychosis a symptom common to both.  

The trial court rejected Justus’ insanity defense but referenced his “severe mental illness” and his “complete lack” of “criminal history” or “history of violence” as mitigating factors in declining to impose the death penalty. Justus was sentenced to two life terms plus 18 years in the Virginia Department of Corrections (“VDOC”). Justus timely appealed, challenging the trial court’s rejection of his insanity defense. The Court of Appeals (“COA”) denied his appeal, citing the testimony of two experts (one expert testified he did not believe Justus was insane and that Justus became psychotic after the killings, the other expert testified Justus was experiencing psychosis at the time of the killings – yet this expert had no opinion regarding Justus’ sanity). But because 18 pages of the transcript were missing due to error on the part of Justus’ counsel, the COA did not consider Justus’ testimony wherein he described the delusions he was experiencing at the time of the killings. 

Ultimately, in September 2013, Justus filed a pro se federal habeas petition pursuant to 28 U.S.C. § 2254, claiming ineffective assistance of counsel. The U.S. District Court for the Western District of Virginia dismissed the habeas petition as untimely.

Five years later, Justus filed a pro se Rule 60(b)(6) motion for reconsideration of the dismissal of his federal habeas petition on the basis that his mental illness had prevented him from filing it timely. He included evidence of his mental health treatment records from the VDOC that revealed intervals of noncompliance with his treatment during which he “experienced depression and psychotic symptoms as well as hypervigilance.” By affidavit from Justus, he provided evidence that he has “ins and outs” and that he “can get stressed and have to push everything away.”

The District Court denied the Rule 60(b) motion, concluding that Justus had failed to make “the kind of extraordinary showing to entitle him to equitable tolling.” The District Court also noted that because Justus’ Rule 60(b) motion was filed more than five years after his federal habeas petition had been denied, the motion was time barred. Justus timely appealed. The Fourth Circuit granted a certificate of appealability on the issue of whether he should be entitled to equitable tolling of the SOL regarding his habeas petition.  

The Court observed that a federal habeas petitioner may be entitled to equitable tolling of the one-year statute of limitations established in the Antiterrorism and Effective Death Penalty Act “where – due to circumstances external to the party’s own conduct – it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” United States v. Sosa, 364 F.3d 507 (4th Cir. 2004). “To establish grounds for equitable tolling, a petitioner must show ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.’” Holland v. Florida, 560 U.S. 631 (2010). “The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. Under the Fourth Circuit’s “existing ‘extraordinary circumstances’ test, [a petitioner] is only entitled to equitable tolling if he presents (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003).

Rule 60(b)(6) “provides the court with a grand reservoir of equitable power to do justice in a particular case.” Reid v. Angelone, 369 F.3d 363 (4th Cir. 2004). But Rule 60(b)(6) “is available only when Rules 60(b)(1) through (b)(5) are unavailable.” Kemp v. United States, 142 S. Ct. 1856 (2022). “Legal errors made by judges” are properly addressed by Rule 60(b)(1). Id. “Rule 60(b) requires that the motion ‘be made within a reasonable time – and for reasons (1), (2), and (3) no more than a year after entry of the judgment or order or the date of the proceeding.’” Rule 60(c)(1). Importantly, the Supreme Court has limited the application of Rule 60(b)(6) to case in which “such action is appropriate to accomplish justice,” Klapprott v. United States, 335 U.S. 601 (1949), and that “involve extraordinary circumstances.” Ackerman v. United States, 340 U.S. 193 (1950).

In the present appeal, the Court determined that Justus’ prison advocate had captioned the motion as a Rule 60(b)(6) motion and had stated in the motion’s conclusion that Justus was seeking relief under Rule 60(b)(6). And the issue raised in the motion was not challenging the District Court’s conclusion that Justus’ habeas petition was untimely, but the issue argued in the 60(b)(6) motion was that Justus’ mental illness had prevented him from presenting an argument in the habeas petition that he was entitled to equitable tolling. Consequently, the motion was not alleging a legal error in the District Court’s decision to dismiss the habeas petition as untimely. Therefore, the Fourth Circuit concluded the motion was properly a Rule 60(b)(6) motion and was, as a result, timely.

Having determined the Rule 60(b)(6) motion was timely, the Court explained the “central issue in this appeal is whether Justus has shown ‘extraordinary circumstances’ entitling him to Rule 60(b)(6) relief and equitable tolling of his federal habeas petition. The overlap between the types of ‘extraordinary circumstances’ that entitle a petitioner to 60(b)(6) relief and those ‘extraordinary circumstances’ that entitle a petitioner to equitable tolling has not been outlined in our precedent.” The Court further explained as “a general matter, we recognize 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.” Zack v. Sec’y, Fla. Dep’t of Corr., 721 F.App’x 918 (11th Cir. 2018) (unpublished). “But given the posture of this case and the certainty of the facts surrounding Justus’s mental illness to both inquiries, we conclude that if Justus’s mental illness satisfies the equitable tolling ‘extraordinary circumstances’ standard, it should also demonstrate ‘extraordinary circumstances’ under Rule 60(b)(6),” the Court stated. 

“As a general matter, the federal courts will apply equitable tolling because of a petitioner’s mental condition only in cases of profound mental incapacity.” Sosa. The Sosa Court limited the availability of equitable tolling to cases of “institutionalization or adjudged mental incompetence.”

But the Court in the present case reasoned that “limitation, however, is ill-suited for this context. The capacity at issue here is what is necessary to timely file a habeas petition. And that differs from the capacity required to stand trial or waive the right to counsel.” Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010).

“In the habeas context, we hold that a petitioner’s mental impairment is sufficiently profound if it renders him unable to comply with the filing deadline. As the Ninth Circuit has explained, the ‘extraordinary circumstances’ test for equitable tolling is met either where the petitioner cannot ‘rationally or factually … understand the need to timely file’ or where his ‘mental state render[s] him unable … to prepare a habeas petition and effectuate its filing.’” Bills.

The Court concluded “we find that Justus’s allegation that his mental illness was so severe during the filing period that it prevented him from timely filing his habeas petition, if true, constitutes an ‘extraordinary circumstance’ supporting both Rule 60(b)(6) and equitable tolling relief, and that there is sufficient supporting evidence in the record to justify further inquiry.”

Accordingly, the Court reversed the order of the District Court denying Justus’ Rule 60(b) motion and remanded with instructions directing the District Court “to conduct an evidentiary hearing on whether Justus’s mental condition during the relevant period constitutes an ‘extraordinary circumstance’ that justifies relief under Rule 60(b)(6) and entitles him to equitable tolling of the statute of limitations governing his habeas petition.” See: Justus v. Clarke, 78 F.4th 97 (4th Cir. 2023).  

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