Anastazia Schmid v. STEVEN MCC AULEY , Superintendent, Indiana Women’s Pris- on

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2974
A NASTAZIA S CHMID,
Petitioner-Appellant,
v.
S TEVEN M CC AULEY , Superintendent, Indiana Women’s Pris-
on,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14-cv-200-WTL-TAB — William T. Lawrence, Judge.
____________________
A RGUED NOVEMBER 10, 2015 — DECIDED J UNE 8, 2016
____________________
Before POSNER , EASTERBROOK, and R OVNER , Circuit Judges.
EASTERBROOK, Circuit Judge. Anastazia Schmid was con-
victed in Indiana of murdering her boyfriend. She testified
that she had heard a voice telling her that she is the Messiah
and that the boyfriend had to die because he had sexually
abused her daughter. The jury found her guilty but mentally
ill. This spared her any risk of capital punishment but did

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2 No. 14-2974
not avoid a long term in prison; the sentence is 55 years, with
the final five suspended in favor of probation. See Schmid v.
State, 804 N.E.2d 174 (Ind. App. 2004) (affirming the convic-
tion and sentence).
After her conviction became final, Schmid sought collat-
eral review in state court. The process took eight years and
was unavailing. See Schmid v. State, 972 N.E.2d 949 (Ind.
App. 2012). Schmid filed her petition without counsel, but
her mental problems led the state judiciary to appoint coun-
sel for her. After the state collateral proceedings ended,
counsel stopped representing her.
Federal law gives state prisoners one year to commence
proceedings under 28 U.S.C. §2254. See 28 U.S.C. §2244(d).
That time is suspended while collateral proceedings are un-
der way in state court. The parties agree that, when Schmid
asked the state court for collateral review, 178 days remained
in the period allowed by §2244(d). They also agree that the
state collateral proceedings ended on November 8, 2012,
when the Supreme Court of Indiana declined to hear her
case. Schmid filed a federal petition on February 7, 2014, 15
months later. Given the time that had elapsed before state
collateral review began, it was 278 days late. Schmid, repre-
senting herself, contended that equitable tolling justified the
late filing. She gave two principal reasons: first, her mental
problems (including post-traumatic stress disorder caused
by her boyfriend’s abuse of her and her daughter); second,
delay by former counsel in turning over legal papers that she
needed. Schmid contended that counsel did not produce
these papers until October 2013, five months after the time
set by §2244(d) had expired.

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No. 14-2974 3
The district court recognized that the deadline in
§2244(d) is subject to equitable tolling if “extraordinary cir-
cumstances” prevent timely filing. See Holland v. Florida, 560
U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). Abandonment by counsel is one potentially extenuat-
ing circumstance, see Maples v. Thomas, 132 S. Ct. 912 (2012),
and inability to access vital papers is another, see Socha v.
Boughton, 763 F.3d 674 (7th Cir. 2014); Estremera v. United
States, 724 F.3d 773, 777 (7th Cir. 2013). The Supreme Court
observed in Christeson v. Roper, 135 S. Ct. 891 (2015), that a
prisoner’s mental disability in conjunction with abandon-
ment by counsel may justify the appointment of new counsel
to explore the question whether the disability tolls the peri-
od of limitations. Nonetheless the district court denied
Schmid’s petition as untimely. 2014 U.S. Dist. LEXIS 85571
(S.D. Ind. June 24, 2014). The judge stated that Schmid had
failed to explain which particular documents she needed in
order to file a petition under §2254 or why she needed them.
With respect to Schmid’s claim of mental disability, the court
said nothing at all.
We must assume for the purpose of this appeal that
Schmid is afflicted by some mental disability—perhaps
schizophrenic delusions (her defense at trial), perhaps post-
traumatic stress disorder, perhaps both, or perhaps some-
thing else. Counsel representing Indiana was unable to tell
us at oral argument what a verdict of “guilty but mentally
ill” means under that state’s practice. But the fact that
Schmid has some kind of mental problem—her substantive
constitutional argument is that she was not competent to
stand trial in the first place—colors everything else in the
case. Schmid could not explain to the district judge’s satisfac-
tion either the nature of her disability (and how it impeded

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4 No. 14-2974
timely filing) or why she needed the papers that former
counsel did not turn over until October 2013. Yet a mental
disability might itself prevent an unrepresented prisoner
from elucidating such matters.
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, formulat-
ing 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 re-
viewed deferentially on appeal, whether the district court
finds tolling warranted or unwarranted. See Simms v. Aceve-
do, 595 F.3d 774, 781 (7th Cir. 2010); Tucker v. Kingston, 538
F.3d 732, 735 (7th Cir. 2008). We have not applied that defer-
ential 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 ap-
proach of decisions such as Estremera, 724 F.3d at 775–76;
Davis v. Humphreys, 747 F.3d 497 (7th Cir. 2014); and Wed-
dington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013), to deter-
mine whether a hearing is in order.
VACATED AND R EMANDED

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