Brian Boulb v. United States , 818 F.3d 334 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1383
BRIAN K. BOULB,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois
No. 14-cv-00737 — J. Phil Gilbert, Judge.
____________________
ARGUED FEBRUARY 25, 2016 — DECIDED APRIL 4, 2016
____________________
Before BAUER, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Brian Boulb filed this petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2255 more than
one year and four months after he had been sentenced and
judgment had been entered against him. Relying on § 2255’s
one-year statute of limitations, the district court dismissed
his petition as untimely without holding an evidentiary
hearing.
2 No. 15-1383
On appeal, Boulb contends the district court erred in
dismissing his petition without conducting an evidentiary
hearing. The district court, according to Boulb, should have
held a hearing to take evidence and determine if the limita-
tions period was equitably tolled on account of his purport-
ed mental incompetence. Finding no fault with the district
court’s decision, we affirm.
I. BACKGROUND
Unpacking Boulb’s federal habeas corpus petition is akin
to opening a Russian matryoshka doll. It contains several
procedural layers nested within each other. The first layer—
his 2008 Illinois state court conviction—is where we start.
A. Boulb’s Illinois State Conviction
Boulb’s current troubles began, according to his affidavit,
in September 2008. That is when he was charged with un-
lawful possession of anhydrous ammonia, unlawful posses-
sion of a methamphetamine precursor, and unlawful posses-
sion of methamphetamine manufacturing materials in Rich-
land County, Illinois. That same day, Boulb appeared in
Richland County Circuit Court via computerized video con-
ference and waived his right to appointed counsel. No tran-
script of the video conference appears in the record.
Around the same time as the hearing, Boulb alleges that
he met with an attorney named David Hyde. According to
Boulb, Hyde was the public defender appointed to represent
him in connection with his 1998 charge and eventual convic-
tion for driving under the influence. 1 Boulb contends that he
1 Boulb’s assertion that Hyde was his appointed lawyer for his 1998 case
is dubious. A recent newspaper article indicates Hyde was an assistant
(continued…)
No. 15-1383 3
believed Hyde had been sent to represent him again. So, ac-
cording to Boulb, when Hyde offered him a plea deal, Boulb
thought it was his attorney discussing an offer from the
prosecutor with him.
That, however, was not the case, Boulb asserts. In Sep-
tember 2008, Hyde was the Richland County State’s Attor-
ney. This fact, according to Boulb, was unbeknownst to him
when he met with Hyde or agreed to the plea deal.
On October 3, 2008—just over a week after being
charged—Boulb entered a negotiated plea of guilty to one
count of unlawful possession of methamphetamine manu-
facturing materials. In exchange, the Richland County State’s
Attorney’s Office agreed to drop the other two counts and to
a sentence of four years’ imprisonment for Boulb. The circuit
court accepted the plea agreement and sentenced him to four
years in prison.
In February 2009, Boulb filed pro se motions in circuit
court seeking transcripts and the record from his case, as
well as permission to proceed as a poor person and for ap-
pointment of counsel. The circuit court ordered the court re-
porter to prepare transcripts from his October 2008 plea
hearing and sentencing. No ruling was made on Boulb’s
other requests. And, so far as we can tell, Boulb did not take
any further action in connection with this case until 2013.
(…continued)
state’s attorney from 1995 to 2004. Matt Courter, County board chooses
Vaughn as state’s attorney, Olney Daily Mail, Aug. 7, 2015.
4 No. 15-1383
B. Boulb’s Federal Conviction
Nearly four years after Boulb’s state court conviction, a
federal grand jury returned a three-count indictment against
Boulb on September 5, 2012, for the following: (1) conspiracy
to manufacture 50 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841, 846; (2) possession of
pseudoephedrine knowing it would be used to manufacture
methamphetamine in violation of 21 U.S.C. § 841(c)(2); and
(3) possession of equipment, chemicals, or material to manu-
facture methamphetamine in violation of 21 U.S.C.
§ 843(a)(6). According to the indictment, Boulb’s involve-
ment in the methamphetamine-production conspiracy start-
ed in November 2009—just over a year after his state-court
conviction and sentencing—and ended in August 2012.
Less than two months after being indicted, Boulb agreed
to plead guilty to all counts in the indictment. On February
14, 2013, the district court imposed a sentence of 235 months’
imprisonment and four years of supervised release on
Boulb. 2 According to Boulb, the district court classified him
as a career offender pursuant to U.S.S.G. § 4B1.1 based on his
two prior state court convictions, including his 2008 convic-
tion, and sentenced him to 235 months’ imprisonment. Boulb
alleges that his defense attorney did not object to the district
court’s reliance on the 2008 conviction in determining his
career-offender status. Judgment was entered against Boulb
on February 20, 2013.
2 Boulb’s sentence was later reduced to 157 months.
No. 15-1383 5
C. Boulb’s Appeal from his 2008 Illinois State Conviction
On March 25, 2013, Boulb filed a pro se notice of appeal of
his 2008 conviction in Illinois state court, along with a mo-
tion to withdraw his guilty plea in connection with that con-
viction and to vacate the judgment. The circuit court ap-
pointed him counsel for his appeal.
In his appeal before the Illinois appellate court, Boulb ar-
gued his conviction should be reversed because the record
did not contain a verbatim transcript of his waiver of coun-
sel, as required by Illinois Supreme Court Rule 401(b). On
September 19, 2014, the Illinois appellate court issued an un-
published opinion dismissing Boulb’s appeal for lack of ju-
risdiction based on his failure to comply with the timeliness
requirements set forth in Illinois Supreme Court Rules 604
and 606. See People v. Boulb, No. 5-13-0158, 2014 WL 4673130
(Ill. App. Ct. Sept. 19, 2014).
D. Boulb’s Federal Habeas Corpus Petition
Before the Illinois appellate court ruled on his appeal,
Boulb filed an affidavit in his federal criminal case on June 6,
2014. In the affidavit, Boulb laid out the allegations recount-
ed above concerning Hyde and his interactions with Boulb,
including Hyde’s alleged involvement in Boulb’s 1998 and
2008 cases.
On June 12, 2014, the district court issued an order relat-
ing to Boulb’s affidavit. After construing it as a motion filed
pursuant to § 2255, the district court warned Boulb that if he
did not withdraw his motion, it would be subject to the sec-
ond or successive filing requirements under § 2255.
6 No. 15-1383
Boulb responded by filing his habeas corpus petition on
June 26, 2014. 3 After requesting that the district court incor-
porate his affidavit filed in the criminal case, 4 Boulb alleged
his 2008 Illinois state conviction could not be considered a
predicate offense on which the district court could rely in
classifying him as a career offender under U.S.S.G. § 4B1.1.
That is because, according to the petition, his 2008 conviction
was procured by “[p]rosecutorial [m]isconduct and/or
[i]neffective [a]ssistance of [c]ounsel.” The petition also stat-
ed the lawyer who represented him in his federal case and
sentencing was ineffective for “for failing to properly inves-
tigate the state conviction in which the petitioner was not
represented by counsel.”
Boulb also preemptively addressed the tardiness of his
federal habeas corpus petition. According to the petition,
Boulb’s § 2255 motion was late because he was awaiting the
outcome of his appeal in Illinois state court. That outcome,
according to Boulb, affected his § 2255 motion.
In the paragraph preceding this explanation, Boulb wrote
that he wanted to “inform” the court that “he is ‘intellectual-
3 The government states that Boulb filed his habeas corpus petition on
June 23, 2013, pursuant to the “prison mail box rule.” That rule provides
that a habeas corpus “petition is deemed filed when given to the proper
prison authorities and not when received by the district court clerk.”
Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999). We need not resolve
the dispute regarding the date on which Boulb “filed” his habeas corpus
petition, as it is not outcome determinative.
4The district court would later file the affidavit in Boulb’s habeas corpus
case and deny the June 6, 2014, “motion” filed by Boulb in his criminal
case as moot.
No. 15-1383 7
ly disabled’ and that he is ‘functionally illiterate.’” He also
stated that he was “attaching an inmate education data tran-
script in support of these allegations.” Boulb did attach a
document entitled “Inmate Education Data Transcript” that
lists courses and “High Test Scores” for “Subtest[s].”
After ordering briefing from the government on Boulb’s
habeas corpus petition, the district court granted the gov-
ernment’s motion to dismiss Boulb’s petition on February 6,
2015. It determined that Boulb’s petition was untimely be-
cause he filed it sixteen months after final judgment in his
federal case, well beyond the one-year limitations period
under § 2255. The district court did not evaluate or discuss
Boulb’s allegation regarding his purported mental incompe-
tence in its ruling. It did, however, determine in an earlier
decision denying Boulb’s request for appointed counsel that
Boulb was “well able to articulate the contours of his argu-
ments and will be able to obtain justice without an attorney.”
Boulb appealed, and on July 14, 2015, this court con-
strued his notice of appeal as an application for a certificate
of appealability, which was then granted. We found Boulb
had made a “substantial showing as to whether the district
court sentenced him as a career offender based in part on a
state conviction that was obtained in violation of his right to
counsel.” This court also asked the parties to address the is-
sues of equitable tolling in light of Boulb’s “alleged intellec-
tual disability” and “waiver or procedural default in light of
his allegation that counsel failed to investigate the predicate
conviction during the federal sentencing proceeding.”
8 No. 15-1383
II. ANALYSIS
Boulb does not contest the district court’s finding that he
filed his habeas corpus petition beyond the statute of limita-
tions for such filings. Nor does Boulb appear to contest that
his habeas corpus petition, affidavit, and inmate transcript
formed a sufficient, stand-alone basis for the district court to
excuse his untimely petition through equitable tolling. 5
Rather, Boulb challenges the district court’s decision to
forego an evidentiary hearing. According to Boulb, the dis-
trict court should have ordered a hearing to develop a more
fulsome record upon which to decide whether equitable toll-
ing excused his untimely petition on account of his alleged
intellectual disability. Boulb requests that we vacate the dis-
trict court’s judgment and order the district court to hold
such a hearing. We review decisions denying evidentiary
hearings in a § 2255 setting for an abuse of discretion. Hutch-
ings v. United States, 618 F.3d 693, 700 (7th Cir. 2010).
5 We use the word “appear” because there are points in Boulb’s opening
brief where he appears to argue that equitable tolling applies to him on
the facts as plead in his petition. (See, e.g., Appellant’s Br. at 7 (“Equitable
Tolling Should Apply To Boulb’s § 2255 Motion Because Boulb Is Intel-
lectually Incompetent.”).) In his conclusion, however, Boulb only asks
that we reverse the dismissal of his § 2255 petition and remand his case
to the district court for an evidentiary hearing to determine whether his
mental incompetence warrants equitable tolling. Boulb’s counsel also
only sought the same relief at oral argument. Because we find that Boulb
does not even merit an evidentiary hearing to determine whether his
alleged mental incompetence interfered with his ability to timely file, we
find he cannot meet the higher bar of qualifying for equitable tolling on
his pleadings and supporting documents alone.
No. 15-1383 9
Not every petitioner who seeks relief pursuant to § 2255
is entitled to an evidentiary hearing. Cooper v. United States,
378 F.3d 638, 641–42 (7th Cir. 2004). A hearing is unnecessary
when “the motion and the files and records of the case con-
clusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b). That is why we have said that a district
court need not hold an evidentiary hearing “if the petitioner
makes allegations that are vague, conclusory, or palpably
incredible, rather than detailed and specific.” Bruce v. United
States, 256 F.3d 592, 597 (7th Cir. 2001) (quotation marks
omitted). The court should, however, conduct an evidentiary
hearing “when the petitioner alleges facts that, if proven,
would entitle him to relief.” Sandoval v. United States, 574
F.3d 847, 850 (7th Cir. 2009) (quotation marks omitted).
Before deciding whether Boulb proffered enough to justi-
fy an evidentiary hearing, we must first consider the stand-
ard for the relief he seeks, which, in this case, is equitable
tolling. Under § 2255, the statute of limitations begins to run
from the latest of four events, with the only relevant event in
our case being “the date on which the judgment of convic-
tion becomes final.” 28 U.S.C. § 2255(f)(1). Section 2255’s
“statute of limitations defense is not jurisdictional” and can
be equitably tolled. Holland v. Florida, 560 U.S. 631, 645, 649
(2010) (alteration and quotation marks omitted); see also Es-
tremera v. United States, 724 F.3d 773, 775 (7th Cir. 2013) (ap-
plying Holland to a § 2255 petition). To qualify for equitable
tolling then, a petitioner must show: “(1) that he has been
pursuing his rights diligently, and (2) that some extraordi-
nary circumstance stood in his way and prevented timely
filing.” Holland, 560 U.S. at 649 (quotation marks omitted).
Equitable tolling is “rare” and “reserved for extraordinary
circumstances far beyond the litigant’s control that prevent-
10 No. 15-1383
ed timely filing.” Socha v. Boughton, 763 F.3d 674, 684 (7th
Cir. 2014) (quotation marks omitted).
In Davis v. Humphreys, 747 F.3d 497 (7th Cir. 2014), we
held that mental incompetence can satisfy the equitable toll-
ing standard articulated by the Supreme Court in Holland.
We declined, however, to articulate “[w]hat sort of mental
limitations justify tolling.” Davis, 747 F.3d at 499–500. In-
stead, we remanded to the district court for an evidentiary
hearing to determine the petitioner’s mental abilities. Id. at
501.
Boulb argues that we should follow Davis’s result and
remand this case to the district court for an evidentiary hear-
ing. According to Boulb, his case is analogous to Davis in
that there is insufficient information in the record to deter-
mine what Boulb’s mental capabilities were and whether
those affected his ability to timely file his § 2255 petition.
The problem for Boulb is that the petitioner in Davis pro-
vided specific facts about those alleged mental deficiencies,
not conclusory allegations. In Davis, the petitioner appended
a report from the Wisconsin prison system to his motion,
which stated he had “an IQ of 49, [was] illiterate and unedu-
cable, and cannot cope with any legal subject.” 747 F.3d at
500. Boulb provided no such detailed report. Instead, Boulb
attached a document to his petition entitled “Inmate Educa-
tion Data Transcript.” The data transcript includes a series of
courses he took, “High Test Scores” in various subjects, in-
cluding “Number OPR,” “Reading Comp,” and “Spelling,”
and scores for those tests. Nothing in this “transcript” ex-
plains how to interpret these scores. How could a district
court ever divine from this “transcript” that Boulb had any
mental deficiency?
No. 15-1383 11
As for Boulb’s allegations that he is “‘intellectually disa-
bled’” and “‘functionally illiterate,’” those allegations are
conclusory and insufficient to justify an evidentiary hear-
ing. 6 See Galbraith v. United States, 313 F.3d 1001, 1010 (7th
Cir. 2002) (affirming district court’s decision to forego an ev-
identiary hearing where petitioner did not provide “specific
details”). While it is true that we recognized illiteracy as one
of many facts in Davis supporting a remand for an eviden-
tiary hearing, it was a fact corroborated by the Wisconsin
prison system, not asserted by the petitioner himself. Boulb
offers no such specific details in his motion, affidavit, or
supporting documents regarding his purported mental defi-
ciencies.
Boulb also did not raise to the district court the argument
that his alleged mental deficiency affected his ability to time-
ly file his petition, as the petitioner in Davis did. Instead,
Boulb asserted his petition was late because he was awaiting
the decision of the Illinois appellate court challenging his
2008 conviction. While his failure to raise this argument—
and in fact proffering a different reason for the delay—
supports the district court’s decision to dismiss Boulb’s
complaint without an evidentiary hearing, it is not outcome
determinative. Cf. Coleman v. Hardy, 690 F.3d 811, 818 (7th
6 While Boulb’s sworn affidavit makes no mention of his alleged mental
deficiencies, his petition specifically requested that his affidavit and peti-
tion be “enjoined.” Because we construe pro se pleadings liberally, we
consider the statements made by Boulb in his memorandum to be incor-
porated into his affidavit. See Hutchings v. United States, 618 F.3d 693, 696
(7th Cir. 2010) (finding that petitioner “properly incorporated by refer-
ence his Memorandum into his sworn petition, especially considering his
pro se status at the time of his original filing.”)
12 No. 15-1383
Cir. 2012) (“It is well-established that arguments raised for
the first time on appeal are waived.”).
We recognize the inherent tension between requiring a
petitioner to raise an argument and permitting mental in-
competence to equitably toll the statute of limitations, for if a
petitioner is so mentally deficient as to excuse late filing, it
could be unfair to expect him to raise and articulate that ex-
cuse. We do not set forth a rule today that a pro se petitioner
must under all circumstances connect his mental disability
with his inability to timely file in his petition. Suffice it to say
that a petitioner’s mental incompetency may be so apparent
from his pleadings and supporting materials that a district
court may order an evidentiary hearing on the question
without the petitioner requesting equitable tolling on ac-
count of mental disability.
That is not, however, the situation we have here. Were
we to adopt the rule advanced by Boulb, any petitioner who
baldy asserts that he is “‘intellectually disabled’” and “‘func-
tionally illiterate’” and only attaches an indecipherable pris-
on transcript would get an evidentiary hearing to determine
whether the statute of limitations is equitably tolled on ac-
count of his or her alleged mental incompetency. Many in-
mates could do the same once § 2255’s statute of limitations
runs on the inmate’s respective petition. This rule would
prove unworkable and could have the practical effect of nul-
lifying a district court’s ability to forego an evidentiary hear-
ing under § 2255. We refuse to adopt such a rule.
Decisions from outside this circuit confronting the ques-
tion of equitable tolling for mental incompetency are of no
help to Boulb’s cause. See Riva v. Ficco, 615 F.3d 35 (1st Cir.
2010); Bolarinwa v. Williams, 593 F.3d 226 (2d Cir. 2010); Ata
No. 15-1383 13
v. Scutt, 662 F.3d 736 (6th Cir. 2011). The courts of appeal in
those decisions all remanded the cases back to the district
courts for further development to determine if the petition-
ers’ purported mental incompetency so interfered with their
ability to timely file that equitable tolling was warranted.
Like Davis, however, each of the district courts in those cases
had specific facts before them relating to the petitioners’ al-
leged mental incompetency, not conclusory allegations. See
Riva, 615 F.3d at 41–42 (petitioner proffered medical records
demonstrating he “suffered from a debilitating mental ill-
ness throughout the tolling interval” along with medical ex-
pert testimony); Bolarinwa, 593 F.3d at 229–30 (petitioner
with purported “‘psychiatric problems’” alleged she had
been placed in psychiatric units, provided dates for her al-
leged placement in those units as well as a letter from a so-
cial worker at one of the hospitals describing her psychiatric
problems); Ata, 662 F.3d at 743 (petitioner alleged he had
been hospitalized several times because of his paranoid
schizophrenia and continues to be medicated by the state
prison system for that illness and other psychoses). 7 As dis-
cussed above, Boulb has failed to do the same here.
Because we find that Boulb is not entitled to an eviden-
tiary hearing on his request for equitable tolling on account
of mental incompetence and he offers no other justification
7 Boulb’s reliance on Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010) is also of
no assistance, as the magistrate judge there had conducted an eviden-
tiary hearing in the first instance to develop a more fulsome record. Id. at
1094–96. The Ninth Circuit was reviewing that record when it reversed
and remanded for further proceedings in light of the legal standard it
established.
14 No. 15-1383
to excuse his late filing, his petition is time-barred. There-
fore, we need not reach the question of whether his claim
was procedurally defaulted.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.