No. 13-­--1326 JEROME T. DAVIS v. BOB HUMPHREYS, Warden, Kettle Moraine Correctional Insti-­-- tution

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-­‐‑1326
JEROME T. DAVIS,
Petitioner-­‐‑Appellant,
v.
BOB HUMPHREYS, Warden, Kettle Moraine Correctional Insti-­‐‑
tution,
Respondent-­‐‑Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 12-­‐‑CV-­‐‑680 — Patricia J. Gorence, Magistrate Judge.
____________________
ARGUED MARCH 5, 2014 — DECIDED APRIL 1, 2014
____________________
Before EASTERBROOK, MANION, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. In Joseph Heller’s Catch-­‐‑22,
Yossarian wants to stop serving as a bombardier during
World War II. Insanity is a reason for being grounded, and
Yossarian tries to convince Doc Daneeka that he is insane—
but to ask proves sanity, because an insane person would
want to fly more missions. Catch-­‐‑22. Jerome Davis, who is in

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2 No. 13-­‐‑1326
prison following a guilty plea, wants federal collateral relief
but did not seek it until the year allowed by 28 U.S.C.
§2244(d) had expired. Equitable tolling can allow a belated
application. Holland v. Florida, 560 U.S. 631 (2010). Demon-­‐‑
strating entitlement to tolling requires a motion, which Da-­‐‑
vis made. He maintains that his mental limitations excuse
untimely filing. A magistrate judge found, however, that an-­‐‑
yone able to make such a motion has shown mental compe-­‐‑
tence and disqualified himself from tolling. Catch-­‐‑22.
The federal judiciary should avoid using Catch-­‐‑22. For all
this record shows, Davis could make a motion only because
someone else drafted and mailed it for him. No one doubts
that, if the “someone else” were a lawyer who accepted the
case after the year had passed, then the lawyer’s skills would
not be imputed to Davis and prevent application of a tolling
doctrine. That the “someone else” was a fellow prisoner—as
Davis, now represented by counsel, maintains—should not
make a difference. Tolling depends on the competence of the
prisoner or an agent engaged before the year is up; an agent
of any kind retained after the time has run does not retroac-­‐‑
tively prevent tolling. So the ground of the district court’s
decision is untenable.
This conclusion does not itself make the application time-­‐‑
ly. We must ask three more questions: First, is mental in-­‐‑
competence ever enough to justify equitable tolling of the
time provided by §2244(d)? Second, if the answer is yes, how
incompetent is incompetent enough? Third, does Davis’s
mental condition meet that standard?
At least three circuits have held that mental incompe-­‐‑
tence can satisfy the standard for tolling established in Hol-­‐‑
land. See Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011); Bills v.

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No. 13-­‐‑1326 3
Clark, 628 F.3d 1092, 1097 (9th Cir. 2010); Riva v. Ficco, 615
F.3d 35, 40 (1st Cir. 2010). Before Holland, several other cir-­‐‑
cuits had reached the same conclusion. See, e.g., Bolarinwa v.
Williams, 593 F.3d 226, 231 (2d Cir. 2010); Hunter v. Ferrell,
587 F.3d 1304, 1309–10 (11th Cir. 2009). We agree, though not
because of any language in §2244(d) or the rest of the Anti-­‐‑
terrorism and Effective Death Penalty Act of 1996 (AEDPA),
of which §2244(d) is a part. The Supreme Court treats tolling
as one of those background understandings in American law
that applies unless a statute modifies or excludes the doc-­‐‑
trine. See Lozano v. Montoya Alvarez, No. 12-­‐‑820 (U.S. Mar. 5,
2014), slip op. 7–8; Young v. United States, 535 U.S. 43, 49–50
(2002). This is as true of details as it is of whether tolling is
available at all. Thus we inquire whether mental incompe-­‐‑
tence supports tolling other federal statutes of limitations.
Although the Supreme Court has never addressed that
question, courts of appeals regularly hold that mental in-­‐‑
competence justifies the tolling of federal periods of limita-­‐‑
tions. Barett v. Principi, 363 F.3d 1316, 1319–20 (Fed. Cir.
2004), collects decisions from most circuits. Our own leading
decision is Miller v. Runyon, 77 F.3d 189 (7th Cir. 1996),
which dealt with tolling the periods for federal employment-­‐‑
discrimination statutes. That there seem to be more recent
decisions concerning mental incompetence and tolling under
the AEDPA than under all other federal statutes put together
may reflect the fact that outside prison an incompetent per-­‐‑
son often has a guardian, who must adhere to statutory time
limits. Mentally incompetent persons in prison, by contrast,
usually do not have the benefit of a guardian who attends to
their legal problems—nor are prisoners who want to seek
collateral relief automatically entitled to appointed counsel.
Davis did not have a lawyer until this court issued a certifi-­‐‑

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4 No. 13-­‐‑1326
cate of appealability, see 28 U.S.C. §2253(c), and appointed
counsel for him under the Criminal Justice Act, 18 U.S.C.
§3006A(a)(2)(B). The likelihood that mentally marginal pris-­‐‑
oners will lack the assistance of guardians or lawyers means
that, for them, it is especially important to follow the norm
under which incompetence permits tolling.
What sort of mental limitations justify tolling? Davis
wants us to hold that anyone whose shortcomings play a
causal role in a delayed filing is entitled to tolling. If that
were the law, however, then almost everyone who failed to
meet a statutory deadline would be entitled to tolling, and
statutes of limitations would be eviscerated. Most people
who file too late do so because they don’t realize that they
have potentially sound legal claims or do not know what
deadline applies to those claims. Many persons of normal
intellect are unable to cope with the legal system. Yet deci-­‐‑
sions such as United States v. Kubrick, 444 U.S. 111 (1979), re-­‐‑
ject arguments that to explain an untimely filing by reference
to the plaintiff’s limited knowledge or ability is to excuse it.
Kubrick argued that he did not know that he had a valuable
legal claim until a physician told him so; the Supreme Court
held that this did not justify an untimely suit. Similarly, it is
established that prisoners’ shortcomings of knowledge about
the AEDPA or the law of criminal procedure in general do
not support tolling. See, e.g., Owens v. Boyd, 235 F.3d 356, 359
(7th Cir. 2000); Taylor v. Michael, 724 F.3d 806, 811–12 (7th
Cir. 2013). If a deficit of legal or medical knowledge that
causes an untimely filing does not justify tolling, then why
should a general inability to cope with matters legal? Some-­‐‑
thing more than but-­‐‑for causation is essential.

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No. 13-­‐‑1326 5
One candidate for the “something more” in criminal law
is inability to understand the charges and assist in one’s own
defense. A person whose mental limitations disable him to
this extent can’t be tried—though a person who can under-­‐‑
stand the charges and assist counsel also can take other
steps, including waiving counsel and pleading guilty. See
Godinez v. Moran, 509 U.S. 389 (1993). Davis must have had
at least this much ability in years past, because the state
court permitted him to plead guilty. He has never contended
that allowing him to enter a guilty plea violated the Consti-­‐‑
tution. (His argument in this proceeding is that his lawyer
let him down by not showing up at a plea-­‐‑bargaining ses-­‐‑
sion, leaving him to negotiate unassisted.)
Another potential candidate for distinguishing persons
who are entitled to tolling from other prisoners who are not
is the line the Supreme Court has drawn in capital litigation
between those who can understand the charges and pro-­‐‑
ceedings well enough to be executed, and those who can’t.
See Atkins v. Virginia, 536 U.S. 304 (2002). The Supreme
Court may address this subject again in Hall v. Florida, No.
12-­‐‑10882, which was argued on March 3, 2014. It is not clear
how this doctrine differs from one dealing with competence
to be tried (or plead guilty); Hall may say more about that.
Perhaps there are still other candidates for a way to de-­‐‑
termine what sorts of mental disability excuse delay in filing
a collateral attack. The parties’ briefs on this appeal do not
cover that subject thoroughly enough for us to be confident
that we understand the range of possibilities—and if we
don’t know what options are available, we cannot choose
intelligently among them.

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6 No. 13-­‐‑1326
Davis contends that we need not choose, because he is so
limited mentally that he is entitled to tolling under any pos-­‐‑
sible rule. A report prepared by Wisconsin’s prison system
in 2007 concludes that he has an IQ of 49, is illiterate and un-­‐‑
educable, and cannot cope with any legal subject. Davis
wants us to take it as established that these conclusions are
correct—but if they are correct, then why did the state judici-­‐‑
ary let him plead guilty? Perhaps he was feigning incompe-­‐‑
tence during the tests but presented himself differently to
the judge. Or perhaps he has limited abstract intelligence but
greater concrete intelligence. We held in Young v. Walls, 311
F.3d 846 (7th Cir. 2002), that even persons with serious men-­‐‑
tal disabilities may have enough concrete awareness to be
able to waive constitutional rights. It is improper to leap
from one IQ test to a conclusion that a particular person is
unable to understand and protect his own legal interests.
Because this case must be remanded so that the district
court can take evidence and determine just what Davis’s
abilities are, we refrain from articulating a legal standard.
The parties should brief that subject in the district court, and
we then can tackle it on the next appeal with a greater likeli-­‐‑
hood of reaching a sound conclusion.
The judgment is vacated, and the case is remanded for
further proceedings consistent with this opinion.

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