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The defense is still at it, but they aren’t having much luck with claims of equitable tolling based on poor memory from an earlier brain injury. This claim works sometimes, but it requires significantly more impairment (and usually one that occurs after the conviction) to prevail.
U.S. ex rel. Shafford v. Davis
2013 WL 139818 (N.D. Ill. 2013)
Defendant, Warren Shafford, filed a petition pursuant to 28 U.S.C. § 2254 to vacate his 2003 conviction for first degree murder. Section 2254 claims are generally subject to a one-year limitations period that runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Shafford’s last hope for saving his claims was the doctrine of equitable tolling. “[A habeas] 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 filing.” Some courts have held that a mental condition “so severe[ ]” that it “impair[s] [petitioner's] ability … effectively to pursue legal relief,” can be the basis for equitable tolling.
Shafford introduced evidence of a cognitive impairment based on an earlier brain injury. In 1986, Shafford suffered abrain injury that “caused significant cognitive deficits,” of “uncertain” duration. In 1990, Shafford’s doctor said that Shafford’s memory and problem solving abilities had been “severely compromis [ed]” by the injury, but that his “condition [had] improved well” after rehabilitation. In 2003, Shafford told a pre-sentence investigator that he had short-term memory loss but his mental health was otherwise fine. A state psychiatrist who examined Shafford shortly thereafter, concluded that he “[had been] fit to stand trial … and [was] currently fit for sentencing.”
In short, the court found that there was “no evidence to suggest that Shafford’s mental impairment caused him to miss the deadline for filing his petition. Thus, the doctrine of equitable estoppel does not save his time-barred claims.”