Riva v. Ficco

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [07-1998]

Case: 07-1998 Document: 00116095895 Page: 1

Date Filed: 08/05/2010

Entry ID: 5468522

United States Court of Appeals
For the First Circuit

No. 07-1998
JAMES RIVA, II,
Petitioner, Appellant,
v.
EDWARD FICCO,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Howard, Selya and Thompson, Circuit Judges.

Randy Gioia, by appointment of the court, with whom Elizabeth
Billowitz and Law Office of Randy Gioia were on brief, for
appellant.
Annette C. Benedetto, Assistant Attorney General, Commonwealth
of Massachusetts, with whom Martha Coakley, Attorney General, was
on brief, for appellee.

August 5, 2010

Case: 07-1998 Document: 00116095895 Page: 2

SELYA, Circuit Judge.

Date Filed: 08/05/2010

Entry ID: 5468522

This case presents a question of

first impression in this circuit: Can mental illness equitably toll
the one-year statute of limitations for the filing of a state
prisoner's habeas petition contained in the Antiterrorism and
Effective

Death

§ 2244(d)(1)?

Penalty

Act

of

1996

(AEDPA),

28

U.S.C.

We hold that the district court correctly answered

this question in the affirmative.

We nonetheless hold that the

district court's further determination that the petitioner was not
entitled to equitable tolling rests on too unsteady a foundation.
Consequently, we vacate the order dismissing the habeas petition
and remand for further proceedings.
I.

BACKGROUND
This case is fact-intensive, so we take pains to mine the

record and recite the relevant background in some detail.

The

facts themselves are largely undisputed (although they support
conflicting inferences).
The petitioner, James Riva, II, suffers from paranoid
schizophrenia.
his

His history of severe mental illness dates back to

adolescence.

His

condition

has

required

intermittent

hospitalization since 1974.
On April 10, 1980, the petitioner killed his grandmother
while under a paranoid delusion that, if he did not, he would fall
prey to a society of vampires.

He was found competent to stand

trial in state court and, on October 30, 1981, a jury convicted him

-2-

Case: 07-1998 Document: 00116095895 Page: 3

Date Filed: 08/05/2010

Entry ID: 5468522

of second-degree murder, arson, and assault and battery on a police
officer.

The trial justice sentenced him to life imprisonment.
Four

days

later,

the

petitioner

was

committed

to

Bridgewater State Hospital (Bridgewater), where he remained until
January 24, 1989.

At that point, he was transferred to the general

prison population.

His stay there was short-lived; he was sent

back to Bridgewater on September 6, 1990, after he assaulted a
correctional officer while under a paranoid delusion that the
officer had been draining fluid from the petitioner's spine.

The

petitioner was charged criminally for the assault, but was found
not guilty by reason of insanity.
The petitioner remained at Bridgewater until August of
1999.

During

this

interlude,

he

attempted

convictions in both state and federal courts.

to

challenge

his

His trial counsel,

John Spinale, filed a timely notice of appeal and motions for new
trial and to revise or revoke the sentence.

The trial justice

denied the latter two motions, and Spinale withdrew as counsel.
Attorney Willie Davis handled the appeal.

The Massachusetts

Appeals Court (MAC) affirmed both the convictions and the denial of
the motion for new trial.

Commonwealth v. Riva, 469 N.E.2d 1307,

1312 (Mass. App. Ct. 1984).

On January 4, 1985, the Supreme

Judicial Court (SJC) denied the petitioner's application for leave
to obtain further appellate review (ALOFAR). Commonwealth v. Riva,
474 N.E.2d 181 (Mass. 1985) (table).

-3-

Case: 07-1998 Document: 00116095895 Page: 4

In

1987

the

Date Filed: 08/05/2010

petitioner,

acting

pro

Entry ID: 5468522

se,

filed

an

application for a writ of habeas corpus in the federal district
court.

The court dismissed the application on the ground that it

contained unexhausted claims.

We affirmed.

Riva v. Getchell, 873

F.2d 1434 (1st Cir. 1989) (table).
On June 2, 1988, the petitioner, again acting pro se,
filed a second motion for new trial.
appointed Dana Alan Curhan as counsel.

The state superior court
Curhan filed an amended

motion for new trial or post-conviction relief. The superior court
denied the amended motion.

The petitioner's counselled appeal was

unsuccessful, Commonwealth v. Riva, 615 N.E.2d 606 (Mass. App. Ct.
1993) (table), and the SJC refused to grant an ALOFAR, Commonwealth
v. Riva, 618 N.E.2d 1364 (Mass. 1993) (table).
Although Curhan's representation ended at that juncture,
the petitioner was undaunted.

On August 2, 1993, he filed a pro se

motion to revise or revoke his sentence.

His newly appointed

counsel, Richard Passalacqua, filed a third motion for new trial on
May 11, 1995.

The superior court denied this motion approximately

three months later, and Passalacqua withdrew as counsel.
The petitioner appealed pro se, but the MAC eventually
dismissed the appeal for want of prosecution. On October 28, 1996,
the superior court denied the petitioner's pro se motion to revise
or revoke his sentence.

-4-

Case: 07-1998 Document: 00116095895 Page: 5

Date Filed: 08/05/2010

Entry ID: 5468522

Meanwhile, the petitioner was attacking on a second
front.

On February 1, 1996, he repaired to the federal district

court and filed another pro se application for habeas relief.

The

district court originally dismissed this case for insufficiency of
service of process but later reopened it.

The reopening came to

naught, as the petitioner, apparently concerned about exhaustion,
moved for a voluntary dismissal on November 25, 1996.
Civ. P. 41(a).

See Fed. R.

The district court granted that motion.

Riva v.

DuBois, No. 96-10273 (D. Mass. Feb. 21, 1997) (unpublished order).
The petitioner's father hired Barbara Smith as counsel to
prepare

a

third

federal

habeas

petition.

Smith

died

before

completing the task, but on January 6, 1998, her law firm filed the
habeas petition (quite possibly without the petitioner's consent).
Because no authorization had been obtained to file a successive
habeas petition, the district court transferred the case to this
court.1

We dismissed the petition for failure to prosecute.

Riva

v. Nelson, No. 99-1071 (1st Cir. Oct. 28, 1999) (unpublished
order).
On March 17, 1999, the petitioner, acting pro se, filed
a fourth new trial motion.

The superior court denied this motion

1

This order was improvident.
Both prior habeas petitions
were dismissed for want of exhaustion.
Because neither was
adjudicated on the merits, the third petition was not "successive"
within the meaning of the habeas statute, 28 U.S.C. § 2244(b). See
Slack v. McDaniel, 529 U.S. 473, 487 (2000); Pratt v. United
States, 129 F.3d 54, 60 (1st Cir. 1997).
-5-

Case: 07-1998 Document: 00116095895 Page: 6

on December 13, 1999.

Date Filed: 08/05/2010

Entry ID: 5468522

The MAC affirmed that order, Commonwealth v.

Riva, 752 N.E.2d 242 (Mass. App. Ct. 2001) (table), and the SJC
denied an ALOFAR, Commonwealth v. Riva, 752 N.E.2d 240 (Mass. 2001)
(table).
On October 15, 2001, the petitioner, acting pro se, filed
the habeas petition with which we are concerned. The district court
appointed counsel and ultimately dismissed the petition as untimely.
Riva v. Ficco, No. 01-12061, 2007 WL 954771, at *6 (D. Mass. Mar.
28, 2007). The court held that the AEDPA statute of limitations was
not tolled on the basis of the petitioner's mental illness.

Id.

It reasoned that the petitioner's prolific filings in both state and
federal courts demonstrated a capacity to comply with the filing
deadline.
claim

Id. at *5.

that

his

The court did not address the petitioner's

actual

limitations defense.

innocence

trumped

the

Commonwealth's

The district court issued a certificate of

appealability, 28 U.S.C. § 2253(c), and this timely appeal ensued.
II.

ANALYSIS
The AEDPA states in pertinent part that a "1-year period

of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court."

Id. § 2244(d)(1).

The statute expressly provides that the

limitations period is tolled by a "properly filed application for
State

post-conviction

§ 2244(d)(2).

or

other

collateral

review."

Equitable tolling is not mentioned.

-6-

Id.

Case: 07-1998 Document: 00116095895 Page: 7

Date Filed: 08/05/2010

Entry ID: 5468522

The essence of equitable tolling is that, "in exceptional
circumstances,

a

statute

of

limitations

'may

be

extended

for

equitable reasons not acknowledged in the statute creating the
limitations period.'" Neverson v. Farquharson, 366 F.3d 32, 40 (1st
Cir. 2004) (quoting David v. Hall, 318 F.3d 343, 345-46 (1st Cir.
2003)).

After this case was briefed and argued, the Supreme Court

determined that the AEDPA limitations period is subject to equitable
tolling in appropriate circumstances.
S. Ct. 2549, 2560 (2010).

See Holland v. Florida, 130

The Holland Court recognized that the

"exercise of a court's equity powers . . . must be made on a caseby-case basis," id. at 2563 (quoting Baggett v. Bullitt, 377 U.S.
360, 375 (1964)), and instructed lower courts to "exercise judgment
in light of prior precedent, but with awareness of the fact that
specific circumstances, often hard to predict in advance, could
warrant special treatment in an appropriate case," id.
This court has not yet responded to Holland.

We have

cautioned, however, in a pre-Holland habeas case, that equitable
tolling "is the exception rather than the rule," and that "resort
to

its

prophylaxis

circumstances."
2001).

is

deemed

justified

only

in

extraordinary

Delaney v. Matesanz, 264 F.3d 7, 14 (1st Cir.

These admonitions are consistent with the teachings of

Holland.
A habeas petitioner bears the burden of establishing the
basis for equitable tolling. Holland, 130 S. Ct. at 2562. To carry

-7-

Case: 07-1998 Document: 00116095895 Page: 8

Date Filed: 08/05/2010

Entry ID: 5468522

this burden, he must demonstrate "'(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way' and prevented timely filing."

Id. (quoting Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see Trapp v. Spencer, 479
F.3d 53, 61 (1st Cir. 2007) (listing additional factors that may,
in a given case, influence a habeas court's decision about whether
to grant equitable tolling).
In
petitioner's

the

case

mental

at

hand,

illness

we

must

constitutes

decide
an

whether

the

extraordinary

circumstance that equitably tolls the AEDPA limitations period.
This inquiry is binary. First, we must decide whether, as a general
proposition, mental illness can qualify as an acceptable basis for
equitable

tolling.

If

so,

we

then

must

decide

whether

the

petitioner's mental illness warrants equitable tolling. We take the
two halves of the inquiry in order.
Although

this

court

has

yet

to

address

the

generic

question of whether mental illness can constitute a ground for
equitable tolling in a habeas case, some other courts of appeals
have

answered

that

question

in

the

affirmative.

See,

e.g.,

Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010); Hunter v.
Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (per curiam); Laws v.
Lamarque, 351 F.3d 919, 923 (9th Cir. 2003).
to the contrary.

No circuit has held

Moreover, our own case law points in the same

direction; in a different context, we recognized that mental illness

-8-

Case: 07-1998 Document: 00116095895 Page: 9

Date Filed: 08/05/2010

can equitably toll a federal statute of limitations.

Entry ID: 5468522

See Nunnally

v. MacCausland, 996 F.2d 1, 5 (1st Cir. 1993) (per curiam) (applying
equitable tolling in the context of the Civil Service Reform Act).
We see no reason for refusing to extend that principle to the AEDPA
context.

We hold, therefore, that mental illness can constitute an

extraordinary circumstance, which may prevent a habeas petitioner
from understanding and acting upon his legal rights and thereby
equitably toll the AEDPA limitations period.
We proceed now to the second dimension of our inquiry.
Mental illness does not per se toll the AEDPA limitations period.
See Bolarinwa, 593 F.3d at 232; Hunter, 587 F.3d at 1308.

There

must be some causal link between a petitioner's mental illness and
his ability seasonably to file for habeas relief.

See, e.g.,

Bolarinwa, 593 F.3d at 232 (requiring that petitioner "demonstrate
that

her

particular

disability

constituted

an

'extraordinary

circumstance' severely impairing her ability to comply with the
filing deadline, despite her diligent efforts to do so"); Hunter,
587 F.3d at 1308 (stating that "the alleged mental impairment must
have affected the petitioner's ability to file a timely habeas
petition"); Laws, 351 F.3d at 923 (allowing tolling so long as the
"petitioner's mental incompetence in fact caused him to fail to meet
the AEDPA filing deadline"); cf. Holland, 130 S. Ct. at 2562
(requiring a habeas petitioner to show that "some extraordinary
circumstance . . . prevented timely filing").

-9-

Case: 07-1998 Document: 00116095895 Page: 10

Date Filed: 08/05/2010

Entry ID: 5468522

In our view, a habeas petitioner satisfies the causation
requirement if he can show that, during the relevant time frame, he
suffered from a mental illness or impairment that so severely
impaired his ability either effectively to pursue legal relief to
his own behoof or, if represented, effectively to assist and
communicate with counsel.

See Nunnally, 996 F.2d at 6-7 (framing

the question as "whether plaintiff's mental condition rendered her
incapable

of

rationally

cooperating

with

any

counsel,

and/or

pursuing her claim on her own during the limitations period").

If

a habeas petitioner satisfies this standard, he should not be held
strictly accountable for complying with the AEDPA's filing deadline.
In the case at hand, the district court ruled that the
petitioner's mental illness was not sufficiently disabling to toll
the limitations period.

Riva, 2007 WL 954771, at *6.

We review a

district court's determination about whether a particular set of
facts

warrants

equitable

tolling

of

limitations for abuse of discretion.

the

AEDPA's

statute

of

See Cordle v. Guarino, 428

F.3d 46, 47 (1st Cir. 2005); Neverson, 366 F.3d at 42.

Abuse of

discretion is not a monolithic standard of review; within it,
abstract questions of law are reviewed de novo, findings of raw fact
are

reviewed

for

clear

error,

and

classically deferential reception.

judgment

calls

receive

a

See United States v. Lewis, 517

F.3d 20, 24 (1st Cir. 2008); Roger Edwards, LLC v. Fiddes & Son
Ltd., 427 F.3d 129, 132 (1st Cir. 2005).

-10-

Case: 07-1998 Document: 00116095895 Page: 11

Date Filed: 08/05/2010

Entry ID: 5468522

With this prelude, we turn to the time line in this case.
The petitioner's conviction became final in 1985, well before
Congress passed the AEDPA.

Thus, the petitioner was entitled to a

one-year grace period running from April 24, 1996 (the AEDPA's
effective date) within which to seek federal habeas relief.

See

Delaney, 264 F.3d at 10; Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir.
1999) (per curiam).
The petitioner did not file the instant habeas petition
until October 15, 2001.

That was beyond the one-year grace period.

Thus, absent tolling, the statute of limitations would have expired
on April 24, 1997.
The petitioner's second motion to revise or revoke his
sentence is of no help to him.

Even though that motion was pending

on April 24, 1996, it did not toll the limitations period because
it was not a "properly filed application for State post-conviction
or other collateral review."

28 U.S.C. § 2244(d)(2).

The motion

to revise or revoke was filed in 1993, several years beyond the
period designated for the filing of such a motion.2

It follows that

the motion was untimely, and an untimely state post-conviction
motion is not properly filed.

See Pace, 544 U.S. at 414; Artuz v.

Bennett, 531 U.S. 4, 8 (2000).

2

Under Massachusetts practice such a motion must be filed no
later than sixty days from the date of sentencing or such later
date when an appellate court either affirms the conviction or
denies review. See Mass. R. Crim. P. 29(a).
-11-

Case: 07-1998 Document: 00116095895 Page: 12

Date Filed: 08/05/2010

Entry ID: 5468522

The intervening period was partially tolled, however, by
the pendency of the petitioner's fourth new trial motion in state
court, so the clock did not run from March 17, 1999 (the date on
which that motion was filed) to June 7, 2001 (the date on which the
SJC denied the ALOFAR).3

The petitioner does not allege that the

four-month period between the latter date and his filing of the
instant

petition

for

a

writ

of

habeas

corpus

was

tolled.

Consequently, the petition is time-barred unless the petitioner can
show that his mental illness tolled the limitations period during
most of the time span from April 24, 1996, to March 17, 1999 — what
we shall call the "tolling period."
The medical reports in the record indicate quite clearly
that the petitioner suffered from a debilitating mental illness
throughout the tolling interval.

After his conviction, he was

committed to Bridgewater for a total of seventeen years, including
most recently from 1990 to 1999.

The documented symptoms of his

paranoid schizophrenia included "bizarre delusions of a persecutory
nature, paranoid ideation, auditory hallucinations and somatic
terrors."

3

The district court incorrectly stated that the statute of
limitations began to run anew on December 13, 1999, when the
superior court denied the motion. See Riva, 2007 WL 954771, at *4.
Tolling continued, however, as long as the state courts had the
motion under review. See Currie v. Matesanz, 281 F.3d 261, 266
(1st Cir. 2002) (explaining that a motion for new trial filed in
Massachusetts remains pending from the time it is first filed until
the time when the SJC denies further review).
-12-

Case: 07-1998 Document: 00116095895 Page: 13

Date Filed: 08/05/2010

Entry ID: 5468522

The petitioner's annual master treatment plan, prepared
on June 28, 1996, confirms the incidence of these symptoms during
the tolling period.

For example, the plan indicates that the

petitioner underwent "recent experiences of auditory and visual
hallucinations" and "urges to consume blood and flesh of others."
It also describes his "poor, schizotypal presentation combined with
[an] inability to manage bizarre impulses," which made him "a very
high danger to himself and others."
Problem(s),"

the

plan

notes

a

Under the heading "Identified

"delusional

system

marked

by

violent/paranoid ideation."
The petitioner's position is further bolstered by the
testimonial

evidence.

In

the

district

court,

the

petitioner

presented expert testimony vouchsafing that his mental illness
precluded him from consistently and effectively pursuing legal
relief until August of 1999 (that is, throughout the tolling
period). His symptoms did not subside until the doctors changed his
treatment protocol — a change that led to his discharge from
Bridgewater in August of 1999.
The petitioner's medical expert, Dr. Montgomery C. Brower,
is a forensic psychiatrist and former deputy medical director at
Bridgewater. He interviewed the petitioner in 2006 and reviewed the
medical records and court filings. In an affidavit submitted to the
district court, Dr. Brower explained that the petitioner was treated
with anti-psychotic medications during his stay at Bridgewater and

-13-

Case: 07-1998 Document: 00116095895 Page: 14

that,

although

his

acute

Date Filed: 08/05/2010

psychotic

symptoms

Entry ID: 5468522

improved

with

medication, he nonetheless "continued to experience, and at times
act upon, an obsessional preoccupation with the delusion that he
needed to obtain and consume human flesh."

Dr. Brower explained

that "this residual psychosis interfered with Mr. Riva's ability to
sustain the attention and effort necessary for him consistently and
effectively to pursue legal review on his own behalf."

It was not

until the petitioner's treatment with a new drug, Zyprexa, beginning
in May of 1999, that his "delusional preoccupation with obtaining
and consuming human flesh progressively diminished, fading away
completely within nine months to a year."
Dr. Brower also examined the petitioner's writings made
both before and after his treatment with Zyprexa.
concluded

that

"[d]ocuments

written

after

.

The psychiatrist
.

.

show

better

organization and greater fluency and flexibility in Mr. Riva's
thinking."
The Commonwealth offered no expert testimony, so Dr.
Brower's views are uncontradicted.

Those views are consistent with

the petitioner's affidavit, in which he declares that before the
administration of Zyprexa, "I experienced periods of lucidity during
which I was able to read, write, and think about my legal case.
These

periods

of

lucidity

were

frequently

disrupted

preoccupation with obtaining and consuming human flesh.

-14-

by

my

Thus,

Case: 07-1998 Document: 00116095895 Page: 15

Date Filed: 08/05/2010

Entry ID: 5468522

before August 1999, I could not focus long and well enough to
properly attend to my legal case."
The district court rejected the testimony of Dr. Brower,
relying instead on (i) the court filings made by the petitioner from
1985

to

1999

and

(ii)

observations

about

the

petitioner's

intelligence (contained in the 1999 Bridgewater discharge summary).
See Riva, 2007 WL 954771, at *5-6.

Although a trial court need not

accept uncontradicted expert testimony, see, e.g., Parrilla-López
v.

United

States,

841

F.2d

16,

19

(1st

Cir.

1988),

articulate a reasoned basis for refusing to do so.

it

must

The district

court's reasoning was flawed.
For one thing, the court's analysis of the petitioner's
filings contains several factual errors.

The court stated that the

petitioner filed four pro se habeas petitions between 1985 and 1999.
Riva, 2007 WL 954771, at *5.

In fact, the petitioner filed three

habeas petitions during that interval, only two of which were filed
pro se. The court further stated that the petitioner made three pro
se filings during the tolling period, referencing a 1996 motion for
new trial, a 1998 petition for habeas corpus, and a 1999 petition
for habeas corpus.
trial.

Id.

There was no 1996 pro se motion for new

The record reflects that the petitioner's counsel filed a

motion for new trial in 1995, and the petitioner filed a pro se
motion for new trial on March 17, 1999 (which tolled the running of
the limitations period).

To be sure, there was a 1998 habeas

-15-

Case: 07-1998 Document: 00116095895 Page: 16

Date Filed: 08/05/2010

Entry ID: 5468522

petition, but it was not filed pro se. There was no habeas petition
filed in 1999.
Courts should not be held to a standard of perfection, and
small factual errors — even a series of small factual errors — do
not necessarily undermine a trial court's ruling.
depends

on

context.

Here,

the

court's

But everything

factual

errors

are

significant because, in the aggregate, they cast doubt upon its
primary reason for rejecting the petitioner's uncontradicted expert
testimony:
"repeated

the

district

submissions

to

court

reasoned

courts"

that

during

the

the

petitioner's

tolling

period

manifested his ability effectively to exercise his legal rights.
Id. at *6. The court's misapprehension of the relevant facts shakes
our confidence in this conclusion.
Withal, there is one pro se filing reflected in the record
during the tolling period: the petitioner's request voluntarily to
dismiss his 1996 habeas petition based on exhaustion concerns. This
filing tends to indicate the petitioner's understanding of his legal
rights.

But that motion, too, must be weighed in context.

The

record indicates that the petitioner never served the respondent in
that case and, for aught that appears, never made any substantive
filings.
The petitioner's 1998 habeas petition also falls within
the tolling period.

That petition, however, was drafted and filed

by counsel retained by the petitioner's father.

-16-

There is no

Case: 07-1998 Document: 00116095895 Page: 17

Date Filed: 08/05/2010

Entry ID: 5468522

evidence that the petitioner communicated with counsel regarding
this

filing;

indeed,

the

petitioner

alleges,

again

without

contradiction in the record, that the petition was filed without his
consent.

This is borne out, at least inferentially, by the fact

that the petition was dismissed for want of prosecution.
A second — and deeper — flaw in the district court's
analysis is its heavy reliance on the fact of the petitioner's
filings as opposed to either their content or their quality.

This

flaw is exacerbated by two other data points: the court's failure
to

address

the

petitioner's

ability

to

sustain

the

lucidity

necessary to effectively pursue legal redress once filings were
effected, and its failure to consider whether the counselled filings
enjoyed the petitioner's effective participation.
To illustrate, the district court relied on the fact that
the petitioner, either pro se or through counsel, had taken a direct
appeal and filed four new trial motions in the state courts.
at *5.

Id.

Yet the court did not discount these filings at all despite

the petitioner's obvious insanity at certain critical times (e.g.,
while counsel was pressing the second motion for new trial, the
petitioner

assaulted

a

correctional

officer

under

a

paranoid

delusion and was recommitted to Bridgewater).
By the same token, the district court did not take into
account that, after the petitioner's third motion for new trial was
denied and the petitioner's counsel withdrew, the petitioner's pro

-17-

Case: 07-1998 Document: 00116095895 Page: 18

se

appeal

was

prosecution.

dismissed

on

Date Filed: 08/05/2010

February

23,

1996,

Entry ID: 5468522

for

want

of

That dismissal, ignored by the district court, tends

to support Dr. Brower's conclusion that, during the tolling period,
the petitioner's "residual psychosis interfered with [his] ability
to sustain the attention and effort necessary for him consistently
and effectively to pursue legal review on his own behalf."
The final cause for concern involves the district court's
reliance on a report of the petitioner's intelligence.

The court

reasoned that the petitioner's mental illness did not prevent him
from complying with the filing deadline in part because his "overall
cognitive abilities fall in the upper end of the average range." Id.
But this is something of a non-sequitur.

The petitioner is not

claiming that he lacked the intelligence to comprehend and act upon
his legal rights but, rather, that he lacked the sanity necessary
to consistently and effectively pursue his legal rights.
There is no necessary correlation between intelligence and
sanity, and the petitioner's claim does not depend on his IQ.

In

fact, the very report that contained the information about the
petitioner's high intelligence noted that his "test profile reflects
considerable test scatter, suggestive of
functioning."

uneven and disrupted

And Dr. Brower concluded that the petitioner's high

IQ substantiated the diagnosis of schizophrenia because the large
discrepancy between the petitioner's verbal and performance IQ
"typically indicates an organic abnormality in the functioning of

-18-

Case: 07-1998 Document: 00116095895 Page: 19

Date Filed: 08/05/2010

Entry ID: 5468522

the left hemisphere of the brain," which is "associated with
schizotypal personality disorder and schizophrenia."
We

have

held

that

when

a

district

court

"plainly

consider[s] all the pertinent factors and no impertinent ones," and
provides a "thorough explanation" of its reasoning, its "refusal to
apply principles of equitable tolling to salvage the petitioner's
time-barred habeas application" does not constitute an abuse of
discretion. Delaney, 264 F.3d at 15; see Donovan v. Maine, 276 F.3d
87, 93 (1st Cir. 2002).

Here, however, the lower court failed to

consider relevant factors such as the content and quality of the
petitioner's court filings.

To compound this oversight, the court

relied on an impertinent factor: the petitioner's raw intelligence.
Finally, the court's explanation for rejecting the uncontroverted
expert testimony depended on mischaracterizations of the facts.
These difficulties, in combination, counsel against a finding that
the district court acted within the encincture of its discretion in
rejecting the petitioner's claim of equitable tolling.
Let us be perfectly clear.

This is a complex case, in

which various pieces of evidence point in different directions.

It

is a close call as to whether or not equitable tolling is warranted,
and we do not suggest what that call ultimately should be.

Here,

however, there are simply too many unanswered questions to permit
the judgment below to stand.

Accordingly, we vacate the judgment

and remand to the district court for further development of the

-19-

Case: 07-1998 Document: 00116095895 Page: 20

Date Filed: 08/05/2010

Entry ID: 5468522

record with a view toward determining whether the petitioner's
mental illness so severely impaired his ability effectively to
pursue legal relief, either on his own behalf or through counsel,
as to warrant equitable tolling of the AEDPA limitations period.4
III.

CONCLUSION
We need go no further.

For the reasons elucidated above,

we vacate the judgment and remand for further proceedings consistent
with this opinion.
Vacated and remanded.

4

The petitioner argues in the alternative that his actual
innocence tolled the statute of limitations. See David, 318 F.3d
at 347-48 (expressing skepticism as to whether a habeas
petitioner's actual innocence can override the AEDPA's limitations
period).
The district court did not pass upon this claim.
On
remand, the district court should consider it.
See Kuenzel v.
Allen, 488 F.3d 1341, 1343 n.3 (11th Cir. 2007) (per curiam); see
also López López v. Aran, 844 F.2d 898, 910 n.16 (1st Cir. 1988).
-20-