Berman Justus, Jr. v. Harold Clarke
Citation78 F.4th 97
Date Filed2023-08-15
Docket20-6351
Cited45 times
StatusPublished
Full Opinion (html_with_citations)
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6351
BERMAN JUSTUS, JR.,
Petitioner - Appellant,
v.
HAROLD W. CLARKE,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Norman K. Moon, Senior District Judge. (7:13-cv-00461-NKM-JCH)
Argued: May 3, 2022 Decided: August 15, 2023
Before, NIEMEYER, GREGORY, and HARRIS, Circuit Judges.
Reversed and remanded by published opinion. Judge Gregory wrote the opinion, in which
Judge Harris joined. Judge Niemeyer wrote a dissenting opinion.
ARGUED: Kelly A. Warlich, MCGUIREWOODS LLP, Charlotte, North Carolina, for
Appellant. Rohiniyurie Tashima, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney
General, K. Scott Miles, Deputy Attorney General, Michelle S. Kallen, Solicitor General,
Brittany M. Jones, Deputy Solicitor General, A. Anne Lloyd, Deputy Solicitor General,
Laura H. Cahill, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellee.
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GREGORY, Circuit Judge:
In November 2003, Berman Justus, Jr. shot and killed his estranged wife,
Amanda Justus, in the front seat of her car while their four-year-old son sat in the back.
As part of the same incident, Justus also shot and killed Amandaâs boyfriend, Joe White.
Justus was charged with capital murder, among other charges. The trial court rejected
Justusâs insanity defense but cited his âsevere mental illnessâ as a mitigating factor in
declining to impose the death penalty.
Justus subsequently attempted to collaterally attack his 2007 convictions and sentence
in state court. After his state habeas petitions were dismissed, Justus sought habeas relief in
federal court. The district court dismissed Justusâs 2013 federal habeas petition as untimely
and for failure to present any arguments in support of equitable tolling.
Five years later, Justus moved for reconsideration of the petitionâs dismissal
pursuant to Federal Rule of Civil Procedure 60(b) on the ground that his âmultiple mental
health disabilities . . . had prevented him from effectively petitioning the court for habeas
relief.â J.A. 238. The district court dismissed Justusâs Rule 60(b) motion and this appeal
followed. We issued a certificate of appealability, which noted that Justusâs Rule 60(b)
motion was timely. For the reasons that follow, we reaffirm that Justusâs Rule 60(b) motion
was timely filed and find that he is entitled to an evidentiary hearing on whether his mental
illness during the relevant period entitled him to relief under Rule 60(b)(6) and equitable
tolling of the statute of limitations governing his habeas petition.
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I.
Following his arrest for the murders of his ex-wife and her boyfriend, Justus was
twice found incompetent to stand trial, and was twice admitted to Central State Hospital
for treatment to restore his competency. He was first admitted from April 21, 2004, to
October 5, 2004, and then again from November 20, 2005, to June 1, 2006. There he was
diagnosed with Schizoaffective Disorder, but this diagnosis was later changed to Bipolar
Disorder (Most Recent Episode Mixed, with Psychosis). These two diagnoses are
functionally similar, and psychosis is a symptom of both conditions.
On January 23, 2007, after a bench trial, the Circuit Court of Greene County,
Virginia convicted Justus of capital murder, using a firearm while committing capital
murder, shooting into an occupied vehicle, first-degree murder, and using a firearm while
committing murder. He was sentenced to two life terms plus eighteen years. Justus argued
at trial that he was acting on the delusion that God commanded him to kill his ex-wife and
her boyfriend. The court rejected Justusâs insanity defense but at sentencing cited his
âsevere mental illness . . . at some point during the period of these offensesâ and his
âcomplete lackâ of âcriminal historyâ or a âhistory of violenceâ to explain its decision to
impose a life sentence rather than death. J.A. 182
Following his 2007 conviction, Justus received mental health treatment from the
Department of Corrections between, at least, May 2007 and August 2008. The treatment
record from this interval describes periods of noncompliance with treatment during which
Justus experienced depression and psychotic symptoms as well as hypervigilance. Justus
later resumed treatment between April and August 2016 after an unspecified period of time
3
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without receiving treatment. 1 The record includes no treatment records between September
2008 and April 2016 or after August 2016, but it includes two 2019 affidavits from Justus
and his mother which purport, in part, to describe his mental state between January 2007
and January 2009. In his affidavit, Justus explains that he has âin[s] and outs,â which he
defines as âtime periods where Iâm dealing with things in a present sense and times when
Iâm not,â and that he âcan get stressed and have to push everything away.â J.A. 185â86.
Justus filed a timely appeal challenging the Circuit Courtâs rejection of his insanity
defense, which the Court of Appeals of Virginia denied on November 30, 2007. In support
of its ruling, the Court of Appeals cited contradictory testimony given by Justus on the day
he was arrested that âhe denied having a sense of purpose to kill Justus and Whiteâ and that
âhe had shot [his wife] because she was keeping their son from him.â J.A. 42â43. The Court
of Appeals also cited the testimony of two trial experts, neither of whom was willing to opine
that Justus was insane at the time of the killings. Dr. Evan Nelson stated that he believed
that Justus had not become psychotic until after the murders, and Dr. William Stejskal
explained that he thought Justus exhibited features of psychosis at the time of the offenses
but had no opinion on the subject âto a reasonable degree of professional certainty.â J.A. 41.
Because eighteen pages of the trial transcript were missing, including the portion of the
transcript in which Justus described the delusion he claims caused him to kill his victims,
the court did not consider Justusâs testimony regarding his delusion.
1
An April 2016 doctorâs note states that Justus, who was ânew to [River North
Correctional Center],â âhas been off meds much more than on meds.â J.A. 225. It further
notes that âhe has been incarcerated since 2007 and has not been in mental health
treatmentâ even though the record includes treatment records from 2007â2008. Id.
4
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No subsequent appeal was filed in the Supreme Court of Virginia. On May 26,
2008, Justusâs counsel, J. Lloyd Snook, III, sent him a letter explaining that the Court of
Appeals had denied his appeal in part because of the eighteen missing transcript pages and
apologizing for failing to timely inform him of âthe problem.â J.A. 54. Snook also
revealed that although he had prepared a petition for appeal of Justusâs conviction to the
Supreme Court on December 23, 2007, and arranged for his paralegal to mail it, he had
discovered that the petition was never filed. Snook explained that the paralegalâs
employment ended in January 2008 and that he did not become aware of the oversight until
May 2008. As confirmed by prison mail records, Justus never received this letter.
On May 18, 2010, Justus filed a bar complaint against his attorney for failing to
include the missing transcript pages and failing to inform him that his appeal had been
dismissed. Only after filing his bar complaint did Justus become aware of Snookâs 2008
letter. The bar dismissed his complaint because it found that Snook had âexplained fullyâ
each of the concerns. J.A. 51. Justus filed a second bar complaint in January 2012, but the
bar again declined to take further action. The record includes a March 2012 affidavit from
Snook admitting responsibility for failing to perfect Justusâs appeal to the Supreme Court of
Virginia and explaining that he did not consult with Justus regarding the appeal â[b]ecause
of [Justusâs] mental state and the difficulties in communicating with him.â J.A. 109â10.
Meanwhile, on November 17, 2010, Justus filed a pro se state habeas petition. It
was dismissed as untimely, and Justus did not appeal. Justus filed a second pro se state
habeas petition on June 28, 2012, which was again denied, and the Supreme Court of
Virginia denied his petition for appeal on June 20, 2013.
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Justus then filed a pro se 28 U.S.C. § 2254 petition dated September 24, 2013,
alleging ineffective assistance of counsel based on his counselâs failure to perfect his 2007
appeal to the Supreme Court. The district court advised Justus that his petition appeared
untimely and requested additional argument or evidence regarding its timeliness. Justus
responded to the order but did not address the courtâs timeliness concern. On June 6, 2014,
the court dismissed Justusâs petition. The court explained that even excluding the periods
during which Justusâs state habeas petitions were pending, 2 his filing delay exceeded the
applicable one-year period. Specifically, the district court found that the federal statute of
limitations for Justusâs federal habeas petition ran (1) from May 18, 2010, to November
17, 2010; (2) from March 30, 2011, to June 28, 2012; and (3) from June 20, 2013, to
September 24, 2013. Thus, the district court found that the statute of limitations clock on
Justusâs federal habeas petition ran for 735 daysâ370 days longer than the one-year statute
of limitations. Since Justus had ânot demonstrated any grounds for equitable tolling,â the
court found that his petition was time-barred. J.A. 163.
Five years later, in August 2019, Justus filed a pro se Rule 60(b) 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. In support of this motion, he provided treatment
records and an affidavit. The district court denied the motion on February 28, 2020.3 The
In applying statutory tolling to Justusâs state habeas petitions, the court made several
2
assumptions in Justusâs favor, including that both state petitions were properly filed.
3
The district court only considered the motion under subsection (6) of Rule 60(b)
because it was âthe only subsection Justus appears to invoke.â J.A. 239.
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court explained that Justus was required to make a showing of âextraordinary
circumstancesâ to qualify for Rule 60(b)(6) relief, J.A. 239, but found âthat he has not
made the kind of âextraordinaryâ showing to entitle him to equitable tolling.â J.A. 241.
Justus appealed on March 12, 2020. In an order dated September 24, 2020, we
granted a certificate of appealability (COA) concerning âwhether Justus should be entitled
to equitable tolling regarding his habeas petition.â Order 1, Sept. 24, 2020, ECF No. 11.
We also found that Justusâs Rule 60(b) motion was timely, despite the five-year period
between the district courtâs habeas decision and the motion, â[g]iven the extensive
evidence documenting Justusâs severe mental disabilities.â Id.
II.
We begin by addressing some confusion regarding the procedural posture of this
case and the proper standard of review for us to apply. Both parties here failed to recognize
that the appropriate standard of review is the standard applicable to denials of Rule 60(b)
motions, not the standard applicable to a direct appeal of a district courtâs denial of
equitable tolling. To be fair, our previous order granted a COA as to the issue: âwhether
Justus should be entitled to equitable tolling regarding his habeas petition.â 4 Id. The
briefing from both parties, therefore, understandably explored this issue. But we are not
omnipotent, and our framing of the COA does not change the procedural posture of this
4
The district court similarly identified â[t]he issue now beforeâ it as âwhether
[Justus] was entitled to equitable tolling as a result of his mental condition.â J.A. 240.
7
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case. Accordingly, we review a district courtâs denial of a Rule 60(b) motion for abuse of
discretion. Browder v. Dir., Depât of Corrs. of Ill., 434 U.S. 257, 263 n.7 (1978).
III.
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
(AEDPA) âwhereâdue to circumstances external to the partyâs own conductâit would be
unconscionable to enforce the limitation period against the party and gross injustice would
result.â United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). To establish grounds for
equitable tolling, a petitioner must show â(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.â Holland v. Florida, 560 U.S. 631, 649 (2010) (emphasis added and
cleaned up). âThe diligence required for equitable tolling purposes is reasonable
diligence, not maximum feasible diligence.â Id. at 653 (cleaned up). And âunder our
existing âextraordinary circumstancesâ 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.â Rouse v. Lee, 339 F.3d 238,
246 (4th Cir. 2003). We review a district courtâs denial of equitable tolling in the habeas
context for an abuse of discretion unless the relevant facts are undisputed, in which case
we review the decision de novo. Id. at 247â48. And we review a district courtâs decision
not to hold an evidentiary hearing in a post-conviction proceeding for an abuse of
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discretion. Crockett v. Clarke, 35 F.4th 231, 245 n.6 (4th Cir.2022) (citing Gordon v.
Braxton, 780 F.3d 196, 204 (4th Cir. 2015)).
Justus filed his Rule 60(b) motion seeking reconsideration of the denial of his habeas
petition where the court concluded he made no argument for equitable tolling of the
AEDPA statute of limitations. Rule 60(b)(6) âprovides the court with a grand reservoir of
equitable power to do justice in a particular case.â Reid v. Angelone, 369 F.3d 363, 374
(4th Cir. 2004) (quoting Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 872
(4th Cir. 1999)). And we have explained that âthere are strong equitable considerations
favoring [Rule 60(b)] motions in habeas cases, given the stringent requirements a prisoner
must satisfy to file a successive habeas application.â Id.
âRule 60(b) allows a court to ârelieve a party . . . from a final judgment, order or
proceedingâ on a limited number of grounds.â Wells Fargo Bank, N.A. v. AMH Roman
Two NC, LLC, 859 F.3d 295, 299 (4th Cir. 2017) (quoting Fed. R. Civ. P. 60(b)). âTo
prevail, a party must first demonstrate (1) timeliness, 5 (2) a meritorious defense, 6 (3) a lack
5
âA motion under Rule 60(b) must be made within a reasonable timeâand for
reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the
date of the proceeding.â Fed. R. Civ. P. 60(c)(1) (emphasis added).
6
We have explained that â[t]he underlying concernâ of this prong is âwhether there
is some possibility that the outcome . . . after a full trial will be contrary to the result
achieved by the default.â Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp.,
843 F.2d 808, 812 (4th Cir. 1988) (emphasis added) (quoting 10 C. Wright, A. Miller &
M. Kane, Federal Practice and Procedure § 2697 (2d ed. 1983)); see also United States v.
Harris, 268 F. Supp. 2d 500, 504 (E.D. Pa. 2003) (considering a Rule 60(b) motion in a
habeas case and explaining that a petitioner must show that âvacating the judgment will
not be an empty exercise.â (quoting Teamsters, Chauffeurs, Warehousemen and Helpers
Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 20 (1st Cir. 1992)).
9
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of unfair prejudice to the opposing party, 7 and (4) exceptional circumstances.â Id. (citing
Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993)). Once
a party has met this threshold, he must then show that he qualifies for relief under one of
the six specific categories listed in Rule 60(b). Dowell, 993 F.2d at 48. Two of these
categories are relevant to our analysis. The first category provides relief in instances of
âmistake, inadvertence, surprise, or excusable neglect.â Fed. R. Civ. P. 60(b)(1). The other
is Rule 60(b)(6), a âcatch-all provisionâ that permits relief for âany other reason that
justifies relief.â Moses v. Joyner, 815 F.3d 163, 167â68 (4th Cir. 2016) (quoting Fed. R.
Civ. P. 60(b)(6)). Indeed, Rule 60(b)(6) âgives a court authority to relieve a party from a
judgment for any other reason not articulated in sections (1) through (5), but only when the
movant demonstrates extraordinary circumstances.â Wells Fargo Bank, 859 F.3d at 299.
The Supreme Court, however, has limited the application of Rule 60(b)(6) to cases where
âsuch action is appropriate to accomplish justice,â Klapprott v. United States, 335 U.S.
601, 615(1949), and that âinvolve[e] extraordinary circumstances,â Dowell,993 F.2d at 48
(citing Ackermann v. United States,340 U.S. 193, 202
(1950)).
IV.
The district court denied Justusâs Rule 60(b) motion because it found that âhe ha[d] not
made the kind of âextraordinaryâ showing to entitle him to equitable tolling.â J.A. 241â42. In
7
We have held, however, that this factor âis of lesser importance.â Natâl Credit Union
Admin. Bd. v. Gray, 1 F.3d 262, 265 (4th Cir. 1993); see also Compton v. Alton Steamship
Co., 608 F.2d 96, 102 (4th Cir.1979) (â[T]he court should in every case give some, though
not controlling, consideration to the question whether the party in whose favor judgment has
been entered will be unfairly prejudiced by the vacation of his judgment.â).
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the alternative, the court also explained in a footnote that it found Justusâs Rule 60(b)
motion untimely. J.A. 241 n.3 (âJustus has not shown or explained why it was reasonable
to file his motion more than five years after his habeas petition was dismissed.â). Because
a party must demonstrate both timeliness and âextraordinary circumstancesâ to prevail
under Rule 60(b)(6), either finding, if upheld, would provide grounds for dismissing
Justusâs motion.
Accordingly, we first address whether Justusâs Rule 60(b) motion is time-barred.
We conclude that his motion was properly filed under Rule 60(b)(6) and, therefore, need
only have been âmade within a reasonable time.â Fed. R. Civ. P. 60(c)(1). As a result, we
reaffirm our prior conclusion that, â[g]iven the extensive evidence documenting Justusâ
severe mental disabilities,â his Rule 60(b) motion was timely. Order 1, Sept. 24, 2020,
ECF No. 11. Next, we conclude that an evidentiary hearing is necessary to determine
whether Justusâs mental disabilities present âextraordinary circumstancesâ warranting
relief under Rule 60(b)(6) and equitable tolling.
A.
Despite the five-year period between the courtâs dismissal of his petition and Justusâs
Rule 60(b) motion, we previously entered an order stating that â[g]iven the extensive
evidence documenting Justusâ severe mental disabilities, the Court deems the Rule 60(b)
motion to be timely.â Order 1, Sept. 24, 2020, ECF No. 11. See generally Klapprott, 335
U.S. at 607â14 (finding a four-year gap timely where the party was incarcerated, ill, and
lacked the ability to hire counsel). While our order did not specify which subsection of Rule
60(b) we found applicable to Justusâs motion, Justus invoked subsection (6), and the district
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court considered only that subsection in its analysis. Thus, this Courtâs determination that
Justusâs motion was timely was likely based on a finding that Justusâs mental illness made
his five-year filing delay âreasonableâ under Rule 60(b)(6). See Fed. R. Civ. P. 60(c). We
find it necessary, however, to revisit our determination that Justusâs motion was timely filed
before we consider whether Justus is entitled Rule 60(b) relief.
Following the May 3, 2022, oral argument in this case, the Supreme Court decided
Kemp v. United States, 142 S. Ct. 1856 (2022). Kemp held that âlegal errors made by judgesâ
are properly addressed by Rule 60(b)(1). In response to that decision, we instructed the
parties to provide supplemental briefing addressing the following questions:
1) Whether, in light of Kemp v. United States, 142 S. Ct. 1856 (2022), a
petitionerâs motion to reopen a district courtâs dismissal of his federal
habeas petition as untimely on the grounds that he is entitled to equitable
tolling due to his mental illness is properly classified as a Rule 60(b)(1)
motion or a Rule 60(b)(6) motion; and
2) If petitionerâs motion is properly classified as a Rule 60(b)(1) motion,
given the applicable one-year maximum limitations period, what impact
does our prior determination that his Rule 60(b) motion is âdeem[ed]â
timely, including in our order granting a certificate of appealability, have
on this Courtâs consideration of whether petitionerâs Rule 60(b)(1)
motion is timely.
ECF No. 68 at 2. Upon consideration of the partiesâ arguments, we conclude that Justusâs
motion is properly classified as a Rule 60(b)(6) motion, and accordingly reaffirm that the
motion is timely filed.
1.
The Supreme Court held in Kemp that Rule 60(b)(6) provides an option for
justifiable relief that âis available only when Rules 60(b)(1) through (b)(5) are
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inapplicable.â 142 S. Ct. at 1861(citing Liljeberg v. Health Servs. Acquisition Corp.,486 U.S. 847
, 863 n.11 (1988)). The timeliness of Justusâs Rule 60(b) motion depends upon
whether his motion is properly characterized as a Rule 60(b)(1) motion or a Rule 60(b)(6)
motion. As noted above, Rule 60(b) requires that the motion âbe made within a reasonable
timeâand for reasons (1), (2), and (3) no more than a year after the entry of the judgment
or order or the date of the proceeding.â Fed. R. Civ. P. 60(c)(1). Thus, if found to be a
Rule 60(b)(1) motion, Justusâs motion is barred by a one-year statute of limitations, and he
may not, in the alternative, seek relief under Rule 60(b)(6). But if the motion is properly
classified as a Rule 60(b)(6) motion, it is timely if filed within a âreasonableâ amount of
time. See Kemp, 142 S. Ct. at 1860.
Appellee Harold Clarke (âClarkeâ) urges us to find that Justusâs motion is time-
barred. He contends that Justusâs motion argues that âthe district court erred in âbarr[ing]â
the âpetition at issue,ââ Appelleeâs Supp. Br. at 3, and that Kemp âmakes clearâ that such a
motion is properly classified as a Rule 60(b)(1) motion because it âsought relief from the
judgment based on âmistakeâ or âexcusable neglect.ââ Appelleeâs Supp. Br. at 1. And
because Justus âcould haveâ brought his motion as a Rule 60(b)(1) motion, Rule 60(b)(6)
is inapplicable and his motion is untimely. Appelleeâs Supp. Br. at 8.
For his part, Justus argues that his Rule 60(b) motion is properly classified as a Rule
60(b)(6) motion because it did not assert that the district court erred in concluding that he
was not entitled to equitable tolling. He explains that evidence of his mental illness
entitling him to equitable tolling was not before the district court until he filed the Rule
60(b) motion. Thus, he contends, the motion did not argue that the district court erred in
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its prior order when it determined that he did not demonstrate any grounds to support
equitable tolling. The motion instead argued that Justusâs severe, ongoing mental illness
had prevented him from effectively presenting an equitable tolling argument. Accordingly,
Justus argues that his Rule 60(b) motion was properly construed as arguing that an
âextraordinary circumstanceââJustusâs severe mental illnessâjustified relief under Rule
60(b)(6). Following this view, this Court is not bound by the one-year limitations period
applicable to Rule 60(b)(1) motions in determining whether his Rule 60(b) motion was
timely filed. Appellantâs Suppl. Br. at 1.
To resolve this dispute, we address whether Justusâs motion argues either âmistakeâ
or âexcusable neglectâ under Rule 60(b)(1).
2.
The terms âmistake, inadvertence . . . or excusable neglectâ found in Rule 60(b)(1)
are often used interchangeably or in conjunction with each other. A âmistakeâ under Rule
60(b)(1) occurs when âthe judge has made a substantive mistake of law or fact in the final
judgment or order,â as well as where âa party has made an excusable litigation mistake.â
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996). Kemp recently
confirmed that the term âmistakeâ in Rule 60(b)(1) includes all errors of law made by a
judge, including âmisapplying controlling law to record facts.â 142 S. Ct. at 1862 & n.2. In
challenging such an error, a petitioner âshould . . . invoke[] Rule 60(b)(1), not (b)(6).â Blitch
v. United States, 39 F.4th 827, 834(7th Cir. 2022) (quoting Kemp,142 S. Ct. at 1862
).
The Fourth Circuit has suggested that âneglectâ under Rule 60(b)(1) includes
âinadvertence, mistake, or carelessness, as well as . . . intervening circumstances beyond
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the partyâs control.â e.spire Commcnâs, Inc. v. CNS Commcnâs, 39 F. Appâx. 905, 912 n.7
(4th Cir. 2002) (quoting Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533
(4th Cir. 1996)). And this Court has defined âexcusableâ as ââan equitable [inquiry], taking
account of all relevant circumstances surrounding the partyâs omission,â including âthe
danger of prejudice to the [nonmovant], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.ââ
Thompson, 76 F.3d at 533 (quoting Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. Pâship,
507 U.S. 380, 395 (1993)). âThe most important of the[se] factors . . . for determining
whether âneglectâ is âreasonableââ is the reason for the delay. Id.,76 F.3d at 534
.
Clarke argues that Justusâs motion alleges either judicial error or his own mistake
or excusable neglect. We find that it does not.
a.
First, Clarke interprets Justusâs motion as alleging that the district court made a
judicial mistake by dismissing his habeas petition as untimely. According to Clarke, Justus
contends in his motion that âthe district court erred in âbarr[ing]â the âpetition at issueâ on
the grounds that âpetitioner made no arguement [sic] to support equitable tolling of the
statute of limitations,ââ Appelleeâs Supp. Br. at 3 (citing J.A. 159), and â[b]ecause he could
have brought his motion as a Rule 60(b)(1) motion on that ground,â his motion is properly
classified as such. Appelleeâs Supp. Br. at 9â10 (emphasis in original).
But Clarkeâs argument that Justusâs motion alleges a judicial mistake misconstrues
Justusâs allegations. In no way does Justus state that the district court âerred.â Rather he
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states that âa prisonerâs failure to file within the specified time must be excused if such
failure was attributable to a mental disability that impaired the prisonerâs ability to
recognize the basis for, or to take advantage of, possible collateral remedies.â J.A. 159.
He further contends that â[t]he petition . . . was barred noting that petitioner made no
arguement [sic] to support equitable tolling of the statute of limitations,â which âwould
require an awareness of that time period that petitioner canât relay, a time period when
anyone that had involvement with him concurred that he was symptomatic according to his
disability.â Id. A careful reading of Justusâs motion demonstrates that it is not a statement
intended to establish any error on the part of the court.
Beyond the language of the motion itself, Justus makes another compelling
argument that he did not move for Rule 60(b) relief on the ground that the district court
made a mistake of law in denying him equitable tolling or in dismissing his petition: the
courtâs ruling was not error based on the record before it, which alleged no facts related to
Justusâs mental illness.
When the district court issued its order dismissing Justusâs petition, Justus had not
argued that his mental illness entitled him to equitable tolling, nor was there any evidence
in the record to support that argument. That evidence was submitted to the court for the
first time when Justus filed his Rule 60(b) motion. And it was in this motion that Justus
argued, again for the first time, that he was entitled to equitable tolling due to his mental
illness. Thus, Justusâs Rule 60(b) motion did not, and could not, present any argument that
the district made a mistake or error of law when it first concluded that he was not entitled
to equitable tolling. In other words, the court did not err in âoverlook[ing] a material
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argumentâ which would fall within the scope of Rule 60(b)(1), see Blitch, 39 F.4th at 834,
nor was there any âmisappl[ication]â by the district court of âcontrolling law to record
facts,â see Kemp, 142 S. Ct. 1862 n.2.
Arguing for a contrary conclusion, Clarke relies on two unpublished opinions from
other circuits. In Smith v. Johnson, No. 00-10019, 2001 WL 43520 at *1 (5th Cir. Jan. 3,
2001), the issue of mental competence came before the district court for the first time in
the petitionerâs habeas petition, where he asked the court to hold a hearing on his âability
to totally understand the written matter that presents itself here or the conceptual matter
involved with this cause.â Id. The district court dismissed his petition as time-barred
without holding a hearing. Id. The Fifth Circuit then construed petitionerâs subsequent
Rule 60(b) motionâwhere he argued that a limitations period âshould have been equitably
tolled because he is mentally incompetentââas a claim for relief under Rule 60(b)(1) based
on a legal mistake. That court denied relief because the petitioner âfailed to allege
sufficient facts to support his claim of incompetenceâ and â[c]onsequently . . . never
demonstrate[d] to the district court that his claim of incompetence was anything more than
a bald assertion.â Id. at *2.
In the other case, the Sixth Circuit denied the petitioner a certificate of appealability
after the district court denied his Rule 60(b)(1) motion. Reynolds v. Nagy, No. 18-1942,
2018 WL 11303656, at *1 (6th Cir. Nov. 8, 2018). The court rejected the petitionerâs
argument that the district court committed a legal mistake by finding he was not entitled to
equitable tolling on the grounds that the petitioner, who had a learning disability, failed to
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present evidence to demonstrate he was mentally incompetent or that his incompetence
caused his untimely filing. Id.
Justusâs case is not analogous to either of these cases. Unlike Smith and Reynolds
where the petitioners alleged errors by the district court, Justus did not raise the issue of
his mental illness before the district court at all. And when he did raise itâin his Rule
60(b) motionâhe provided the district court with evidence sufficient to document his
mental illness. This evidence was presented in support of his equitable tolling argument,
not to show that the district court had previously made a âmistakeâ in determining sua
sponte that he had not stated grounds for equitable tolling.
In sum, based on the language of Justusâ motion and his failure to allege any
âmistakeâ by the district court, the motion should not be deemed a Rule 60(b)(1) motion
on those grounds.
b.
Second, Clarke asserts that Justusâs motion is a Rule 60(b)(1) motion because âit is
premised on arguments that Justusâs own âmistake, inadvertence, . . . or excusable neglect[]â
justified relief from judgment.â Appellee Supp. Br. at 10 (citation omitted). Here, too, we
are unpersuaded. When the district court ordered Justus in 2013 to submit arguments on or
evidence concerning why âthe petition should be deemed timely,â J.A. 116, Justusâs
response did not address the timeliness issue at all, and the court dismissed his petition.
Justus contends in his motion that he was âdiligent in making effort to assert his rights,â but
his mental illness âwould not allow him to generate [a] competent petition himself.â J.A.
159. But Clarke argues that whether Justus misunderstood the courtâs order or failed to
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comply with it due to his mental issues, his motion to reopen judgment is an âexample of
alleged litigant mistake or excusable neglect due to âcarelessness or . . . intervening
circumstances beyond the partyâs controlââ that falls under Rule 60(b)(1) and its one-year
limitations period. Appelleeâs Supp. Br. at 11 (citing Thompson, 76 F.3d at 533). We
disagree, as Clarke has failed to recognize the meaningful distinction between excusable
neglect and âextraordinary circumstancesâ in this case.
As we have noted, our Circuit has held the reason for a delay is â[t]he most
importantâ factor âfor determining whether âneglectâ is âreasonableââ under Rule 60(b)(1).
See Thompson, 76 F.3d at 534. But to justify relief under Rule 60(b)(6), âa party must
show âextraordinary circumstancesâ suggesting that the party is faultless in the delay.â
Pioneer, 507 U.S. at 393(citing Liljeberg,486 U.S. at 863
& n.11). This requires the
petitioner to demonstrate âan extraordinary situation which cannot fairly or logically be
classified as mere âneglectâ on his partâ and that âreveal[s] far more than a failure to defend
. . . due to inadvertence, indifference, or careless disregard of consequences.â Id. (quoting
Klapprott, 335 U.S. at 613). Conversely, â[i]f a party is partly to blame for the delay, relief
must be sought within one year under subsection 1 and the partyâs neglect must be
excusable.â Id. Inability to comply with a deadline takes a situation âoutside the scope of
âexcusable neglectâ âbecause âneglectâ in the context of its subject matter carries the idea
of negligence and not merely of non-action.ââ Id.(quoting Klapprott,335 U.S. at 630
(Frankfurter, J., dissenting)). âThus, at least for purposes of Rule 60(b), âexcusable
neglectâ is understood to encompass situations in which the failure to comply with a filing
deadline is attributable to negligence. Because of the language and structure of Rule 60(b),
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a partyâs failure to file on time for reasons beyond his or her control is not considered to
constitute âneglect.ââ Pioneer, 507 U.S. at 394 (emphasis added).
Unfortunately, Justusâs supplemental brief does not address the applicability of
excusable neglect under Rule 60(b)(1) or how it is distinguishable from âextraordinary
circumstancesâ that justify relief under Rule 60(b)(6). And Clarke mentions the potential
applicability of Rule 60(b)(6) only briefly, stating that â[e]ven if a movantâs mental
condition could theoretically fall within the ambit of Rule 60(b)(6) under certain
âextraordinary circumstancesâ not covered by any other provision of Rule 60(b), as the
district court noted, Justus here âpresented nothing to explain his delay of more than five
years in filing his motion for reconsideration,ââ and âtherefore failed to demonstrate that
any âextraordinary circumstance warrants relief here.ââ 8 Appelleeâs Supp. Br. at 12 n.3
(citing J.A. 239, 241 n.3).
But a close review of Justusâs motion demonstrates that his claim for relief under
Rule 60(b)(6) âdid not rest on mere allegations of âexcusable neglect.ââ 335 U.S. at 613.
It asserted an âextraordinary circumstanceââhis severe mental illnessâas justification for
relief under Rule 60(b)(6).
8
Curiously, the district court reached this conclusion even after acknowledging that
Justus had been diagnosed with âa number of mental health disorders, some of them quite
serious,â that psychologists for both the prosecution and the defense testified that âat least
after the offense, he was suffering from a serious mental illness,â and that Justus âwas
twice institutionalized to restore competency before being required to stand trial.â J.A.
240. The court also noted that although the trial court ultimately determined he was not
insane at the time of the offense, there was âsubstantial evidence . . . that the defendant
suffer[ed] from some very serious mental health problems.â J.A. 240â41.
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First, beyond the caption of the motion itself and its conclusion, both of which
specifically invoke Rule 60(b)(6), the motion, drafted by a prison advocate, explains that
making an argument in support of equitable tolling âwould require an awareness of that
time period that petitioner canât relay, a time period when anyone that had involvement
with him concurred that he was symptomatic according to his disability,â and that his
âsevere mental disability has directly attributed to a complex tangle of legal issues that has
to be undone one knot at a time.â J.A. 159. The motion concludes with a request to the
court to âundo the first knot by . . . [r]eviving his lost right of appeal pursuant to Federal
Rule 60(b)(6).â Id. Given this Courtâs duty to construe pro se filings liberally, see Arakas
v. Commâr, 983 F.3d 83, 104 n.11 (4th Cir. 2020), these facts and allegations support a
finding that Justus intended to seek relief under Rule 60(b)(6), not Rule 60(b)(1).
Second, if Clarkeâs reliance on the Fifth Circuitâs opinion in Smith v. Johnson is
helpful at all, it is because it establishes that âmental incompetence, if sufficiently severe,
may qualify as an extraordinary circumstance that justifies equitable tolling and relief from
a judgment.â 2001 WL 43520, at *3. Here, Justusâs allegations of his severe mental illness,
if true, are sufficient âto demonstrate that his condition was the type of extraordinary
circumstance that merited equitable tolling, and therefore Rule 60(b)(6) relief.â Id. at *2.
As discussed infra, Justus was diagnosed with a number of âquite seriousâ mental
health disorders. J.A. 240. Psychologists who evaluated him on behalf of both the
prosecution and the defense agreed that âhe was suffering from a serious mental illnessâ
after the offense. Id. In fact, he was so mentally ill that âhe was twice institutionalizedâ to
restore competency to stand trial. Id. The court also noted that although he was not insane,
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there was âsubstantial evidence . . . that [Justus] suffer[ed] from some very serious mental
health problems.â J.A. 240â41.
Finally, and perhaps most importantly, Justusâs prison advocate noted that âanyone
that had involvement with Justus concurred that he was symptomatic according to his
disability,â âhis disability would not allow him to generate [a] competent petition himself,â
âhe could not communicate,â and â[h]is severe mental disability has directly attributed to
[the] complex tangle of legal issuesâ in which Justus finds himself. J.A. 159. In short,
â[h]is severe mental disabilityâ âimpaired [his] ability to recognize the basis for, or to take
advantage of, possible collateral remedies.â Id. His advocate also noted that while he was
attempting to help Justus with his case, Justus âimmediately started to show signs of
agitat[ion] and stress until reaching a point that [he] could not even speak to him about his
legal issues.â J.A. 160. But the advocate pressed on with Justusâs case âto keep [his]
promise to helpâ and because he âd[id] not want to fail [Justus] after he has been failed in
this matter at every level of review.â Id.
Unable to accept that reality, Clarke cites two more unpublished, out-of-circuit, and
factually distinguishable authorities in support of his argument that Justusâs delay in filing
constituted excusable neglect. See Flynn v. Peopleâs Choice Home Loans, Inc., 440 F.
Appâx 452, 457â58 & n.4 (6th Cir. 2011) (affirming denial of a Rule 60(b)(1) motion
arguing that due to petitionerâs âmedical conditionâ (paranoid schizophrenia) and
prescription drug side effects, petitionerâs âmental state was such that he did understand
the rules or court ordersâ because petitioner â[had] not submit[ted] any proof that any
medical ailments or prescription medications affected his mental capacity.â); Washington
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v. State Street Bank & Trust Co., 14 F. Appâx 12, 15 (1st Cir. 2001) (affirming without
explanation or analysis denial of a Rule 60(b)(1) motion that was based on several excuses
for delay, including the petitionerâs âmental difficulties.â). Neither case, however,
analyzes whether a delay in filing due to mental illness constitutes âneglectâ or an
âextraordinary circumstanceâ that justifies relief. See Pioneer, 507 U.S. at 393. Further,
in neither case did the moving party seek relief under Rule 60(b)(6) as Justus has done, and
unlike here, the courts in those cases found that they lacked evidence to support claims of
mental incapacity.
For all these reasons, we find that Justusâs situation falls squarely in the category of
exceptional circumstances rather than excusable neglect.
***
Accordingly, we conclude that Justusâs Rule 60(b) motion was properly classified
as a motion under Rule 60(b)(6), and that he alleged âextraordinary circumstancesâ that, if
confirmed, would justify relief. And given that a Rule 60(b)(6) motion need only âbe made
within a reasonable time,â see Rule 60(c)(1), we reaffirm our September 24, 2020 holding
that Justusâs Rule 60(b) motion was timelyâfiled within a reasonable time â[g]iven the
extensive evidence documenting Justusâs severe mental disabilities,â Order 1, Sept. 24,
2020, ECF No. 11.
B.
1.
Having established the timeliness of the Rule 60(b)(6) motion, we turn to the heart
of the matter. By issuing a COA in this case, we found that Justus had made âa substantial
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showing of the denial of a constitutional right.â 28 U.S.C. § 2253(c)(2) (âA certificate of
appealability may issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right.â). Where, as here, âthe district court denies relief on
procedural grounds,â a substantial showing of the denial of a constitutional right is met if
the petitioner can âdemonstrate both that the dispositive procedural ruling is debatable, and
that the petition states a debatable claim of the denial of a constitutional right.â Nedd v.
Clarke, 771 F. Appâx 281, 282 (4th Cir. 2019) (per curiam) (citing Slack v. McDaniel,529 U.S. 473, 484-85
(2000)); see also Reid,369 F.3d at 371
(explaining that in considering
whether to issue a COA to permit review of a Rule 60(b) motion, a court should ânot look
exclusively at the [60(b)] motionâ but also âassess whether [petitioner] has made a
substantial showing of the denial of a constitutional rightâ).
The central issue in this appeal is whether Justus has shown âextraordinary
circumstancesâ entitling him to Rule 60(b)(6) relief and equitable tolling of his federal
habeas petition. The overlap between the types of âextraordinary circumstancesâ that
entitle a petitioner to 60(b)(6) relief and those âextraordinary circumstancesâ that entitle a
petitioner to equitable tolling has not been outlined in our precedent. And few other courts
have considered the issue. In an unpublished case, the Fifth Circuit seems to have found
the two standards coterminous, or at least substantially overlapping, in the context of
profound mental illness. See Smith, 2001 WL 43520, at *3 (â[M]ental incompetence, if
sufficiently severe, may qualify as an extraordinary circumstance . . . . that merit[s]
equitable tolling, and therefore Rule 60(b)(6) relief.â (emphasis added)).
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Perhaps recognizing this precedent, the district court defined the issue presented by
Justusâs Rule 60(b)(6) motion as âwhether [Justus] was entitled to equitable tolling as a
result of his mental condition,â J.A. 240, and we granted a COA concerning âwhether
Justus should be entitled to equitable tolling regarding his habeas petition,â Order 1, Sept.
24, 2020, ECF No. 11. Consistent with that framing, we collapse the Rule 60(b)(6) and
equitable tolling âextraordinary circumstancesâ inquiries for the purpose of this analysis.
As a general matter, we recognize that âan extraordinary circumstance must independently
warrant each particular relief sought,â and that each form of relief may serve a different
purpose and present unique factual questions. Zack v. Secây, Fla. Depât of Corr., 721 F.
Appâx 918, 923 (11th Cir. 2018) (unpublished). But given the posture of this case and the
centrality of the facts surrounding Justusâs mental illness to both inquiries, we conclude
that if Justusâs mental illness satisfies the equitable tolling âextraordinary circumstancesâ
standard, it should also demonstrate âextraordinary circumstancesâ under Rule 60(b)(6).
2.
The district court found that Justus was not entitled to equitable tolling for his
untimely federal habeas petition because he had not âshow[n] that his mental problems were
so profound that they prevented him from filing basically at any time from the date he
discovered his attorneyâs error (in May 2010) through some point in 2012.â J.A. 240â41.
Although the court agreed that âJustusâs medical records indicate that he has been
diagnosed with a number of mental health disorders, some of them quite serious,â it did
not consider his mental illness an âextraordinary circumstanceâ because ânothing [Justus]
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has provided suggests that he was institutionalized or judged to be incompetent at any point
after he was convicted, which is the relevant time period.â J.A. 240.
We have previously explained that â[a]s a general matter, the federal courts will apply
equitable tolling because of a petitionerâs mental condition only in cases of profound mental
incapacity.â Sosa, 364 F.3d at 513 (emphasis added). But we have not elaborated on what
categories of mental impairment constitute such profound incapacity. And in this vacuum,
some courts have interpreted our use of the term âincapacityâ and the Sosa Courtâs citation
to a Ninth Circuit case, Grant v. McDonnell Douglas Corp., 163 F.3d 1136 (9th Cir. 1998),
to limit the availability of equitable tolling to cases of âinstitutionalization or adjudged
mental incompetence.â See, e.g., Sosa, 364 F.3d at 513(quoting Grant,163 F.3d at 1138
). 9
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 to waive the right to counsel. See Bills v. Clark, 628 F.3d 1092,
1099 (9th Cir. 2010) (â[T]he âcompetencyâ standard does not exist in a vacuumâit varies
in relation to the task the defendant is expected to perform. A decision to stand trial or
plead guilty is different from undertaking a self-defense at trial.â); Hunter v. Ferrell, 587
F.3d 1304, 1309 (11th Cir. 2009) (âWhether a criminal defendant is competent to stand
trial with an attorney is a materially different question from whether a habeas petitionerâs
undisputed, substantial [intellectual disability] prevented him from filing pro se his § 2254
9
Notably, Grant did not hold that equitable tolling must be limited to such situations;
it merely recognized that other circuits had permitted equitable tolling for mental illness in
limited circumstances and provided examples of such. See 163 F.3d at 1138.
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petition within the AEDPAâs one-year limitations period.â). Indeed, the Supreme Court
has articulated different competency standards for different proceedings. See Dusky v.
United States, 362 U.S. 402, 402 (1960) (per curiam) (competence to stand trial); Indiana
v. Edwards, 554 U.S. 164, 178 (2008) (competence to represent oneself at trial).
In the habeas context, we hold that a petitionerâs mental impairment is sufficiently
profound if it renders him unable to comply with the filing deadline. As the Ninth Circuit
has explained, the âextraordinary circumstancesâ test for equitable tolling is met either where
the petitioner cannot ârationally or factually . . . understand the need to timely fileâ or where
his âmental state render[s] him unable . . . to prepare a habeas petition and effectuate its
filing.â Bills, 628 F.3d at 1099â1100; see also Perry v. Brown, 950 F.3d 410, 412â13 (7th
Cir. 2020) (explaining that a defendant with aphasia, which impaired his ability to speak,
write, and understand words, may have been âunable to use language well enough to protect
his interests,â including by not being able to âask someone else to assist himâ).
Thus, the district courtâs emphasis on Justusâs failure to provide evidence
âsuggest[ing] that he was institutionalized or judged to be incompetent at any point [during]
the relevant time periodâ is misplaced because, while a petitionerâs institutionalization or
adjudged incompetence is certainly relevant to an equitable tolling analysis, it is not
required. J.A. 241. Rather, this case requires a more particularized investigation into
Justusâs mental illness at the relevant times to determine whether it rendered him unable to
timely file his habeas petition.
Clarke argues that Justus has provided insufficient evidence to meet this standard
because he has not provided treatment records or other evidence of his level of impairment
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during the relevant one-year filing period. But Justus has, and had at that point, been
diagnosed with either Schizoaffective Disorder or Bipolar Disorder (Most Recent Episode
Mixed, with Psychosis), which is a lifelong illness. Thus, his earlier and later medical
records provide evidence of his mental functioning during the relevant period. See Ata v.
Scutt, 662 F.3d 736, 743â44 (6th Cir. 2011) (explaining that âthe record corroborates
[petitionerâs] allegations of mental incompetence preventing timely filingâ even though
âmany of the instances in the record of his past medical treatment occurred before
incarcerationâ because his âdiagnosis of paranoid schizophrenia presents a lifelong
conditionâ); Hunter, 587 F.3d at 1309â10 (finding that petitioner had provided sufficient
evidence âto raise a factual issue as to whether a causal connection exists between his
mental impairment and his ability to file a timely § 2254 petitionâ because a medical expert
testified that his impairment âis significant and irreversibleâ and so a 1997 expert report
âremains probative of Hunterâs mental impairment as to the § 2254 petition during the
limitations period and beyond to 2008â). For that reason, we have affirmed here our initial
conclusion that Justusâs Rule 60(b) motion was timely â[g]iven the extensive evidence
documenting Justusâs severe mental disabilities,â Order 1, Sept. 24, 2020, ECF No. 11
(emphasis added), based on medical records documenting Justusâs symptoms at times
preceding the five-year period between the dismissal of his federal habeas petition and the
filing of his Rule 60(b) motion.
As we previously explained, Justus has provided extensive evidence that he is severely
mentally ill. Following his arrest, Justus was twice found incompetent to stand trial. And,
although the Circuit Court rejected Justusâs insanity defense, it recognized at sentencing that
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âthere is substantial evidence in this case that the defendant suffers from some very serious
mental health problems.â J.A. 180. In particular, there is significant evidenceâincluding his
treating psychologistâs trial testimony and his post-conviction medical recordsâestablishing
that when unmedicated, Justusâs functioning deteriorates and he experiences depression and
psychotic symptoms, such as paranoia and perceptual disturbances.
Indeed, Justusâs form of mental illness is characterized by periods of noncompliance
with treatment. See Paul S. Appelbaum, Reference Guide on Mental Health Evidence, in
Fed. Judicial Ctr., Reference Manual on Scientific Evidence 858 (3d ed. 2011) (explaining
that although antipsychotics are very effective, patients often stop taking them âdue in part
to the nature of some mental disorders, especially schizophrenia,â which leads affected
persons to deny that medication is needed). At trial, a psychologist who treated Justus
between his two hospitalizations explained that Justus would go through periods of
noncompliance with medication after which he quickly re-experienced symptoms. J.A. 214
(â[H]eâd goâtake the medication, symptoms would dissipate, then heâd go off and theyâd
increase, and heâd go back on and theyâd decrease again.â). Indeed, Justusâs treatment
records between May 2007 and September 2008 describe multiple periods during which he
rejected medications, and, as noted above, an April 2016 doctorâs note explains that Justus
âhas been off meds much more than on meds.â J.A. 225. In sum, a feature of Justusâs illness
is that he will frequently reject treatment, and he has provided evidence strongly suggesting
that he lacks the ability to timely file a habeas petition during periods of nontreatment. At a
minimum, this evidence warrants further exploration into Justusâs mental state during the
relevant time period.
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It is true, as the dissent points out, that Justus filed state habeas petitions and
engaged in other litigation-related activity between May 18, 2010 (when the limitations
period for Justusâs federal habeas petition began to run) and September 24, 2013 (when
Justus filed his federal habeas claim). But that fact does not preclude a finding that Justusâs
mental illness during that timeframe amounts to an âextraordinary circumstance.â That is,
while those petitions may undermine Justusâs argument that his âmental state rendered him
unable personally to prepare a habeas petition and effectuate its filing,â they do not speak
to his ability ârationally or factually to personally understand the need to timely file.â Bills,
628 F.3d at 1100. To the contrary, that at least one of his state petitions was dismissed as
untimely corroborates Justusâs claim that his mental illness prevented him from timely
pursing his claims. And as the Ninth Circuit recognized in Bills, either the inability to
understand the need to timely file or the inability to file a habeas petition can amount to an
âextraordinary circumstanceâ warranting equitable tolling. Id. Therefore, even if Justusâs
state habeas petitions and related activity cut against his argument, they are not so
dispositive that they should short-circuit an evidentiary hearing at which Justus can finally
present full evidence of his mental illness and its effect on his ability to file. With that
evidence in hand, the district court will be well-suited to determine how much weight, if
any, to assign Justusâs state habeas petitions in its âextraordinary circumstancesâ analysis.
Thus, we find that Justusâs 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 âextraordinary circumstanceâ supporting both Rule 60(b)(6) and equitable tolling relief,
and that there is sufficient supporting evidence in the record to justify further inquiry.
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We acknowledge that the reason for the high âextraordinary circumstancesâ
standard in the Rule 60(b) context is to protect the finality of judgments. See Gonzalez,
545 U.S. at 535. Yet Rule 60(b)(6) also âprovides the court with a grand reservoir of
equitable power to do justice in a particular case.â Reid, 369 F.3d at 374 (quoting
Eberhardt, 167 F.3d at 872). Given Justusâs evidence and allegations of his severe and
continuing mental illness, this case strikes us as one that likely âcries out for the exercise
of that equitable power to do justice.â Gray, 1 F.3d at 266. Therefore, we conclude that
the district court abused its discretion in failing to hold an evidentiary hearing and remand
for the district court to determine whether Justusâs mental illness constitutes an
âextraordinary circumstanceâ that warrants Rule 60(b)(6) and equitable tolling relief. 10
V.
By all accounts, Justus suffers from a serious mental illness. He has sufficiently
alleged, and provided evidence supporting, the severity and continuing nature of his mental
illness to at least justify an inquiry into whether and for how long his illness may have
prevented him from filing his habeas petition. We therefore reverse the district courtâs order
10
If, on remand, the district court finds âextraordinary circumstances,â it should
also address any remaining factors in the Rule 60(b) and equitable tolling analyses. In
considering the diligence required for equitable tolling, the court should consider Justusâs
pursuit of his state habeas claims as evidence that he exercised reasonable diligence during
the filing period. Although at least some of those filings were late, that does not undercut
a finding of diligence here because Justus needed only to exercise reasonable diligence
given his mental illness. See Bills, 628 F.3d at 1100â01 (explaining that in the context of
mental illness, a court must âconsider whether the circumstances demonstrate the petitioner
was otherwise diligent in attempting to comply with the filing requirementsâ (emphasis
added)).
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denying Justusâs Rule 60(b) motion and remand the case to the district court with instructions
to conduct an evidentiary hearing on whether Justusâs mental condition during the relevant
period constitutes an âextraordinary circumstanceâ that justifies relief under Rule 60(b)(6)
and entitles him to equitable tolling of the statute of limitations governing his habeas petition.
REVERSED AND REMANDED
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NIEMEYER, Circuit Judge, dissenting:
Berman Justus, who was convicted of capital murder in state court in 2006, was
years late when, in September 2013, he filed this federal habeas petition under 28 U.S.C.
§ 2254, which carries a one-year limitation period, see28 U.S.C. § 2244
(d)(1). The district
court accordingly dismissed his petition as untimely. When, five years later, Justus filed a
motion for relief from that final judgment under Federal Rule of Civil Procedure 60(b)(6),
arguing that the filing deadline for his habeas petition should have been equitably tolled
because of his mental illness, the court found that Justus had not demonstrated that his
mental illness excused the untimeliness of his habeas petition. More particularly, the court
found that Justus had not âshow[n] that his mental problems were so profound that they
prevented him from filing basically at any time from the date he discovered his attorneyâs
error (in May 2010) through some point in 2012.â Accordingly, the court denied Justusâs
motion for relief from the judgment. We then issued a certificate of appealability on the
issue of âwhether Justus should be entitled to equitable tolling regarding his habeas
petition,â and we stated that his Rule 60(b)(6) motion would be considered as timely.
Although we previously directed the inquiry only to the timeliness of Justusâs
habeas petition under § 2244(d)(1), the majority now appropriately recognizes that while
we entered an order holding that Justusâs Rule 60(b)(6) motion was timely â that is, âmade
within a reasonable timeâ within the meaning of Rule 60(c) â that order did not eliminate
the need for Justus also to establish that âextraordinary circumstancesâ exist that warrant
the reopening of the final judgment under Rule 60(b)(6). See Buck v. Davis, 580 U.S. 100,
112 (2017). Yet, while recognizing the need for Justus to establish extraordinary
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circumstances to obtain Rule 60(b)(6) relief, the majority completely overlooks the
Supreme Courtâs express admonition that, in the context of federal habeas proceedings,
lower courts should be especially demanding before finding that extraordinary
circumstances justifying a reopening are present. Indeed, the Court has specifically stated,
âSuch circumstances will rarely occur in the habeas context.â Gonzalez v. Crosby, 545
U.S. 524, 535 (2005) (emphasis added). And the majority also rides roughshod over the
district courtâs findings, heedless of the Courtâs recognition that âRule 60(b) proceedings
are subject to only limited and deferential appellate review.â Id. (emphasis added).
Moreover, strangely and without any statutory authority, the majority concludes that
it is appropriate to âcollapseâ the âextraordinary circumstancesâ inquiry that must be
conducted before a Rule 60(b)(6) motion can be granted with the distinctly different
analysis required for determining whether Justusâs habeas petition was timely filed under
§ 2244(d)(1). Ante at 25. Certainly, the Rule 60(b)(6) and equitable tolling standards do
each have in common an elemental requirement of showing âextraordinary
circumstances.â See Buck, 580 U.S. at 112; Holland v. Florida,560 U.S. 631, 649
(2010)
(âA petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filingâ (cleaned up)). But while there is some overlap between the two
inquiries, it is legal error to simply conflate them, as the majority expressly does. See
ante at 25. Such âcollaps[ing]â fails utterly to recognize that while the âextraordinary
circumstancesâ element required for showing equitable tolling focuses on the reason why
a party failed to satisfy a particular filing deadline, the Court has required a movant
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seeking Rule 60(b)(6) relief to establish âextraordinary circumstancesâ as a means of
preserving the finality of judgments. See Gonzalez, 545 U.S. at 535. Despite these
distinct standards and purposes, the majority concludes that âif Justusâs mental illness
satisfies the equitable tolling âextraordinary circumstancesâ standard,â it follows that he
will have necessarily also established ââextraordinary circumstancesâ under Rule 60(b)(6).â
Ante at 25. I cannot agree.
Finally, even looking beyond the flaws in the majorityâs Rule 60(b)(6) analysis,
its approach to the underlying equitable tolling issue is equally marred. The majority
holds that, based on the record presented to it, âthe district court abused its discretion in
failing to hold an evidentiary hearingâ on whether Justusâs habeas petition was timely filed.
Ante at 31. Yet, while formally remanding for that purpose, the majority nonetheless
forecasts its expectation for that hearingâs outcome. It finds, for instance, that Justusâs
âfive-year . . . delayâ in filing his Rule 60(b)(6) motion was âreasonableâ because of âthe
extensive evidence documenting [his] severe mental disabilities.â Id. at 11â12; see also
id. at 23, 28. And it observes that Justus âhas provided evidence strongly suggesting that
he lacks the ability to timely file a habeas petition during periods of nontreatment.â Id. at
29. That clearly tramples the notion of a âlimited and deferential appellate review.â
Gonzalez, 545 U.S. at 535.
In addition to these analytical flaws, the majority also relies on factual conclusions
that are irredeemable. For instance, in applying the facts, the majority forswears the need
for any medical records documenting Justusâs mental illness during the relevant period.
See ante at 27â28. And perhaps most problematic, it fails to account in any meaningful
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way for evidence in the record demonstrating that during the relevant period, Justus was
able to, and did, file relevant and complicated pleadings in court and conduct related
correspondence. The record simply does not show â and, indeed, is inconsistent with
finding â that Justusâs substantial delay in filing his federal habeas petition can be justified
on the ground that he was mentally incapable of timely filing that petition.
I would therefore affirm the district courtâs conclusion that Justus has not made the
extraordinary showing required for equitably tolling the limitation period.
* * *
In October 2006, Justus was convicted in a Virginia state court of capital murder
and related offenses, and on January 23, 2007, he was sentenced to life imprisonment plus
18 years. His conviction and sentence were affirmed by the Virginia Court of Appeals on
November 30, 2007, and he did not appeal further to the Virginia Supreme Court.
Nearly three years later, on May 18, 2010, Justus sent a letter to the Virginia State
Bar complaining about his attorneyâs performance in connection with his appeal. And
thereafter, acting pro se, he filed two state habeas petitions, clearly presenting the claim as
early as January 2011 that his counsel had been ineffective in âfail[ing] to perfect [his]
appeal.â After the second of those petitions was denied, he appealed to the Virginia
Supreme Court, which also denied review. In addition to filing those petitions, Justus wrote
additional letters complaining that his counsel had been ineffective âfor failing to effect
[his] appeal to the Supreme Court of Virginia.â
On September 24, 2013, over three years after he first wrote the Virginia State Bar,
Justus, again acting pro se, filed this federal habeas petition in the district court, making
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the same ineffective assistance of counsel claim that his âcounsel failed to perfect [his]
second-tier direct appeal to the Virginia Supreme Court.â The district court noted that
Justusâs federal petition appeared to be untimely but allowed him to present an argument
as to why it was not, even though it was filed more than a year after the one-year statute of
limitations had run. See 28 U.S.C. § 2244(d)(1)(D). Following Justusâs response, the court
concluded that â[d]espite being given the opportunity to amend his petition, Justus [had]
ma[de] no argument to support equitable tolling of the statute of limitations.â Accordingly,
the court found that âJustus ha[d] not demonstrated any grounds for equitable tolling,â and
on June 6, 2014, it dismissed his petition as untimely.
More than five years later, on August 13, 2019, Justus filed a motion in the district
court under Federal Rule of Civil Procedure 60(b)(6) to reopen the courtâs judgment
dismissing his federal habeas petition. He argued then for the first time that his severe
mental disorders had prevented him from filing his habeas petition on time and therefore
that the one-year limitation period applicable to federal habeas petitions should have been
equitably tolled. The district court, relying on our established standard that ââequitable
tolling [because] of a petitionerâs mental conditionâ is only appropriate âin cases of
profound mental incapacityââ (quoting United States v. Sosa, 364 F.3d 507, 513 (4th Cir.
2004)), denied Justusâs motion for reconsideration. It found that Justus had ânot made the
kind of âextraordinaryâ showing [necessary] to entitle him to equitable tolling.â
Remarkably, the majority now totally overlooks the gap in evidence by pointing to
Justusâs medical records from before 2009, projecting them forward without any basis for
concluding that they were applicable to the period from May 18, 2010 (when Justus had
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undisputedly learned of his ineffective assistance claim) to September 24, 2013 (when he
filed his federal habeas petition). The majority does so simply by emphasizing the severity
of Justusâs pre-2009 condition and hypothesizing that it debilitated Justus during the
relevant period â despite the fact that, during that same period, Justus had pursued his
ineffective assistance of counsel claim with multiple filings and letters, thus demonstrating
that he was indeed also capable of filing a federal habeas petition but simply failed to do
so. The relevant details of the record are not disputed.
First, the record contains no medical evidence from the relevant time period that
shows that Justus had a medical condition that denied him the ability to file his habeas
petition on time. And the medical evidence that Justus did provide from outside the
relevant period shows that the severity of his mental illness was not constant. To be sure,
the record indicates that Justus had a mental disorder that was both chronic and severe. But
significantly, it also indicates that the severity of the symptoms he experienced fluctuated
over time. For instance, in November 2007, medical staff recorded about Justus, âno
mental health issues reported or observed.â But in June 2008, when he had âbeen off all
med[ications] over the past several months,â medical records indicate that his âcondition
[had] deterioratedâ fairly significantly, and he presented as âdistressedâ and âdisoriented.â
Yet by comparison, in April 2016, when he also had not been on any medication, he
reported difficulty sleeping and stress associated with being moved to a new prison but
otherwise indicated that he was ânot having too many issues with schizoaffective disorderâ
as long as he could keep his stress level in check. The doctor who interviewed him
described his judgment, impulse control, and insight as âfairâ and his affect as only âmildly
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dysphoric.â Indeed, Justusâs own take on his condition, as described in an affidavit filed
with his motion for reconsideration, is that he has âin[s] and outs,â meaning, as he
explained, âthat there are time periods where Iâm dealing with things in a present sense and
times when Iâm not.â And his mother wrote during the same period that â[h]e can be OK
sometimes. But if he stresses to[o] much Iâm worried.â
Of course, these points are not intended to show that Justus did not or does not have
a serious mental disorder, but rather that the severity of his disorder varied, such that Justus
had periods in which he could function relatively normally if he was not under stress. Most
importantly, however, the record contains no medical evidence about Justusâs condition
between May 18, 2010, and September 24, 2013, which is the relevant period for
determining whether the limitation period should be tolled because of Justusâs mental
condition.
Moreover, evidence from the relevant period shows affirmatively that Justus was
indeed able to file coherent court pleadings on his own behalf. During that same period,
he also was able to write letters to advance his claim that his lawyer provided him
ineffective assistance. Specifically, from May 18, 2010, to September 24, 2013 â the
relevant period â Justus took the following actions:
1. On May 18, 2010, he sent a letter to the Virginia State Bar complaining about the
conduct of his attorney, J. Lloyd Snook, III.
2. In the summer and early fall of 2010, after receiving Snookâs explanation as to why
he had failed to perfect an appeal to the Virginia Supreme Court, Justus sent Snook
two letters asking for assistance. Snook responded by letter dated October 3, 2010,
advising Justus that he should file a state habeas petition in the circuit court.
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3. On November 17, 2010, Justus filed a state habeas petition in the circuit court,
alleging, inter alia, ineffective assistance of counsel.
4. Then, on January 17, 2011, Justus amended his state habeas petition to add, among
other claims, the specific claim at issue here â that his counsel was ineffective in
failing to perfect his appeal. He argued that his lawyer âfailed to perfect [his]
appealâ and that the failure âwas without legitimate strategic purpose . . . and
therefore petitioner suffered prejudice by having his appeal . . . abandoned.â
5. In early January 2012, Justus filed a second complaint against Snook with the
Virginia State Bar âfor failing to effect [his] direct appeal to the Virginia Supreme
Court,â and on January 30, 2012, he sent âfollow-up correspondence certified mail,
return receipt requestedâ when he had not received a timely response. While the
Bar declined to take further action, the complaint appears to have prompted Snook
to send Justus an affidavit in March 2012 to assist in Justusâs effort.
6. Apparently around this same time, Justus âwrote to the mailroom at Wallenâs Ridge
State Prison . . . and requested confirmation that no legal mail was ever received by
[him] from Mr. Snook during the dates of May 26, 2008, through June 2008,â i.e.,
the time period when he should have received a letter from Snook first informing
him that his petition for appeal to the Virginia Supreme Court had not been filed.
In response, the mailroom sent him a letter dated February 22, 2012, confirming it
had no record of such a letter during that time in the incoming legal logbooks it
maintains.
7. On June 28, 2012, Justus filed a second state habeas petition in the circuit court,
which was pending until September 27, 2012.
8. At some point thereafter, Justus appealed the circuit courtâs denial of his second
habeas petition by filing a petition with the Virginia Supreme Court, which was
denied on June 20, 2013.
9. A few months after that, on September 24, 2013, Justus finally filed his federal
habeas petition, presenting a single claim that he âwas denied the right to appeal his
convictions by way of ineffective assistance of coun[s]el because coun[s]el failed
to perfect such appeal to the Virginia Supreme Court after being directed to do so.â
This evidence of Justusâs extensive litigation-related activity from May 2010 until
September 2013 simply and effectively precludes his argument that his mental illness was
so severe that it prevented him from also timely filing his federal habeas petition. Instead,
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it demonstrates that he was capable of putting together relatively complicated legal filings
and gathering evidence to support those filings. To be sure, he directed his attention during
the time period to pursuing remedies in state court, rather than federal court, which turns
out to have been a mistake. But it is well established that âeven in the case of an
unrepresented prisoner, ignorance of the law is not a basis for equitable tolling.â Sosa,
364 F.3d at 512.
At bottom, I fail to see how the district court on remand could conclude that Justus
lacked the mental capacity to file a habeas petition alleging the ineffective assistance of
counsel claim at issue here within a year of discovering its factual basis in May 2010, when
he did in fact file at least one habeas petition in state court alleging that precise claim within
the one-year period. Thus, as in Sosa, I would conclude that a remand for further
development of the record is unwarranted because the many steps Justus was able to take
in âseeking to vacate or modify his sentence indicate quite clearly that his is not [the kind
of] extraordinary caseâ where a petitionerâs âprofound mental incapacityâ has prevented a
timely filing. 364 F.3d at 513; see also Conroy v. Thompson,929 F.3d 818, 821
(7th Cir.
2019) (concluding that âthe district court was well within its discretionâ in concluding that
petitioner âfailed to prove that extraordinary circumstances prevented him from timely
filingâ in part because his state-court filings during the relevant time period âshow[ed] that
[he] had the capacity to engage in the legal processâ); Obriecht v. Foster, 727 F.3d 744,
751 (7th Cir. 2013) (emphasizing that the petitioner âfiled direct and collateral appeals in
state court [during the period in] which he assert[ed] that his mental health prevented him
fromâ filing and that he had âoffered no explanation for how he was able to file in those
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cases but not in this oneâ); Robison v. Hinkle, 610 F. Supp. 2d 533, 540 (E.D. Va. 2009)
(âA petitionerâs ability to make other legal filings during the alleged period of his
incompetency counsels strongly against allowing equitable tolling of [his] federal habeas
petitionâ).
Accordingly, I would affirm.
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