# UnitedStates C ourt of App eals For the First C ircuit

No. 07-1998 JAMES RIVA, II, Petitioner, Appellant,

v . EDWARD FICCO, Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge]

Before Howard, Selya and Thompson, Circuit Judges.

Randy Gioia, by appointment of the court, with whom Elizabeth Billowitz and Law Office of Randy Gioia were on brief, for appellant. Annette C. Benedetto, Assistant Attorney General, Commonwealth of Massachusetts, with whom Martha Coakley, Attorney General, was on brief, for appellee.

August 5, 2010-2- SELYA, Circuit Judge. This case presents a question of first impression in this circuit: Can mental illness equitably toll the one-year statute of limitations for the filing of a state prisoner's habeas petition contained in the An t iterrorism and Effective Death Penalty Act of 1996 (AEDPA), 2 8 U.S.C. § 2244(d)(1)? We hold that the district court correctly answered this question in the affirmative. We nonetheless hold that the district court's further determination that the petitioner was not entitled to equitable tolling rests on too unsteady a foundation. Consequently, we vaca t e the order dismissing the habeas petition and remand for further proceedings. I. BACKGROUND

This case is fact-intensive, so we take pains to mine the record and recite the relevant background in some detail. The facts themselves are largel y u n disputed (although they support conflicting inferences).

The petitioner, J a m e s R i v a , I I , s uffers from paranoid schizophrenia. His history of severe mental illness dates back to his adolescence. His condition h a s required intermittent hospitalization since 1974.

On April 10, 1980, the petitioner killed his grandmother while under a paranoid delusion that, if he did not, he would fall prey to a society of vampires. He was found competent to stand trial in state court and, on October 30, 1981, a jury convicted him-3-

of second-degree murder, arson, and assault and battery on a police officer. The trial justice sentenced him to life imprisonment.

Four days later, the petitioner was committed to Bridgewater State Hospital (Bridgewater), where he remained until January 24, 1989. At that point, he was transferred to the general prison population. His stay there was short-lived; he was sent back to Bridgewater on September 6, 1990, after he assaulted a correctional officer while under a paranoid delusion that the officer had been draining fluid from the petitioner's spine. The petitio n e r w as charged criminally for the assault, but was found not guilty by reason of insanity.

The petitioner re m a i ned at Bridgewater until August of 1999. During this interlude, he attempted to challenge his convictions in both state and federal courts. His trial counsel, John Spinale, filed a timely notice of appeal and motions for new trial and to revise or revo k e the sentence. The trial justice denied the latter two motions, and Spinale w i thdrew as counsel. Atto r n e yW i l l i e D a v i s h a n d l e dt h e a p p e a l . T h e M a s s a c h u s e t ts Appeals Court (MAC) affirmed both the convictions and the denial of the motion for new trial. Commonwealth v. Riva, 469 N.E.2d 1307, 1312 (Mass. App. Ct. 1984). On January 4 , 1985, the Supreme Judicial Court (SJC) denied the petitioner's application for leave to obtain further appellate review (ALOFAR). Commonwealth v. Riva, 474 N.E.2d 181 (Mass. 1985) (table).-4- In 1987 the petitioner, acting pro se, filed an application for a writ of habeas corpus in the federal district court. The court dismissed the application on the ground that it contained unexhausted claims. We affirmed. Riva v. Getchell, 873 F.2d 1434 (1st Cir. 1989) (table).

On June 2, 1988, th e petitioner, again acting pro se, filed a second motion f o r new trial. The state superior court appointed Dana Alan Curhan as counsel. Curhan filed an amended motion for new trial or post-conviction relief. The superior court denied the amended motion. The petitioner's counselled appeal was unsuccessful, Commonwealth v. Riva, 615 N.E.2d 606 (Mass. App. Ct. 1993) (table), and the SJC refused to grant an ALOFAR, Commonwealth v. Riva, 618 N.E.2d 1364 (Mass. 1993) (table).

Although Curhan's representation ended at that juncture, the petitioner was undaunted. On August 2, 1993, he filed a pro se motion to revise or revoke his sentence. His newly appointed counsel, Richard Passalacqua, filed a third motion for new trial on May 11, 1995. The superior court denied this motion approximately three months later, and Passalacqua withdrew as counsel.

T h e petitioner appealed pro se, but the MAC eventually dismissed the appeal for want of prosecution. On October 28, 1996, the superior court denied the petitioner's pro se motion to revise or revoke his sentence.This order was improvident. Both prior habeas petitions 1 were dismissed for want of exhaustion. Because neither was adjudicated on the merits, the third petition was not "successive" within the meaning of the habeas statute, 28 U.S.C. § 2244(b). See Slack v. McDaniel, 529 U.S. 473, 487 (2000); Pratt v. United States, 129 F.3d 54, 60 (1st Cir. 1997). -5- Meanwh i le, the petitioner was attacking on a second front. On February 1, 1 9 9 6 , he repaired to the federal district court and filed another pro se application for habeas relief. The district court originally dismissed this case for insufficiency of service of process but la t e r reopened it. The reopening came to naught, as the petitioner, apparently concerned about exhaustion, moved for a voluntary dismissal on November 25, 1996. See Fed. R. Civ. P. 41(a). The district court granted that motion. Riva v. DuBois, No. 96-10273 (D. Mass. Feb. 21, 1997) (unpublished order).

The petitioner's father hired Barbara Smith as counsel to prepare a third federal habeas petition. Smith died before completing the task, but on January 6, 1998, her law firm filed the habeas petition (quite possibly without the petitioner's consent). Because no authorization had be e nobtained to file a successive habeas petition, the district court transferred the c a s e t o this court. We dismissed the petition for failure to prosecute. Riva

1 v. Nelson, No. 99-1071 (1 s t Cir. Oct. 28, 1999) (unpublished order). On March 17, 1999, the petitioner, acting pro se, filed a fourth new tria l m otion. The superior court denied this motion-6-

on December 13, 1999. The MAC affirmed that order, Commonwealth v. Riva, 752 N.E.2d 242 (Mass. App. Ct. 2001) (ta b l e), and the SJC denied an ALOFAR, Commonwealth v. Riva, 752 N.E.2d 240 (Mass. 2001) (table). On October 15, 2001, the petitioner, acting pro se, filed the habeas petition with which we are concerned. The district court appointed counsel and ultimately dismissed the petition as untimely. Riva v. Ficco, No. 01-12061, 2007 WL 954771, at * 6 (D. Mass. Mar. 28, 2007). The court held that the AEDPA statute of limitations was not tol l e d o n t he basis of the petitioner's mental illness. Id. It reasoned that the petitioner's prolific filings in both state and federal courts demonstrated a capacity to comply wi t h t h e filing deadline. Id. at *5. The court did not address the petitioner's cla i m that his actual innocence trumped the Commonwealth's limitations defense. The district court issued a cer t i f i c a te of appealability, 28 U.S.C. § 2253(c), and this timely appeal ensued. II. ANALYSIS

The AEDPA states in pertinent part that a "1-year period of limitation shall apply t o a n a p p lication for a writ of habeas corpus by a person in custody p ursuant to the judgment of a State court." Id. § 2244(d)(1). The statute expressly provides that the limi tations period is tolled by a "properly filed application for State post-conviction or other collateral review." Id. § 2244(d)(2). Equitable tolling is not mentioned.-7- The essence of equitable tolling is that, "in exceptional circumstances, a statute of limitations 'may be extende d for equitable reasons not acknowledged in the statute creating the limitations period.'" Neverson v. Farquharson, 366 F.3d 32, 40 (1st Cir. 2004) (quoting David v. Hall, 318 F.3d 343, 345-46 ( 1 s t Cir. 2003)). After this case was briefed and argued, the Supreme Court determined that the AEDPA limitations period is subject to equitable tolling in appropriate circumstances. See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). The Holland Court reco g n i z e d t hat the "exercise of a court's equity powers . . . must be made on a caseby-case basis," id. at 2563 (quoting Bagg e t t v . Bullitt, 377 U.S. 360, 375 (1964)), and instructed lower courts to "exercise judgment in light o f p r i o rprecedent, but with awareness of the fact that specific circumstances, often h a r d to predict in advance, could warrant special treatment in an appropriate case," id.

This court has not yet responded to Hol l a n d . We have cautioned, however, in a pre-Holl and habeas case, that equitable tolling "is the exception rather than the ru l e , " a nd that "resort to its prophylaxis is deemed just ified only in extraordinary circumstances." D e l a ney v. Matesanz, 264 F.3d 7, 14 (1st Cir. 2001). These admonitions are consistent wi th the teachings of Holland. A habeas petitioner bears the burden of establishing the basis for equitable tolling. Holland, 130 S. Ct. at 2562. To carry-8-

this burden, he must demonstrate "'(1) that he has been pursuing his rights diligently, and (2) that some extraordi n a ry circumstance stood in his way' and prevented timely filing." Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see Trapp v. Spencer, 479 F.3d 53, 61 (1st Cir. 2007) (listing additional factors t h a t m a y, in a given case, influence a habeas court's decision about whether to grant equitable tolling).

In the c a se at hand, we must decide whether the petitioner's mental illne s s constitutes an extraordinary circumstance that equitably tolls the AEDPA limitations p e r iod. This inquiry is binary. First, we must decide whether, as a general proposition, mental illness can qualify as an acceptable basis for equitable tolling. I f s o , we then must decide whether the petitioner's mental illness warrants equitable tolling. We take the two halves of the inquiry in order.

Although this court has yet to address th e generic question of whether mental illness can constitute a gro und for equitable tolling in a habeas case, some other courts o fa p p e als have answered that question in the affirmative. See, e.g., Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010); Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (per curiam); Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). No circui t has held to t he contrary. Moreover, our own case law points in the same direction; in a different context, we recognized that mental illness-9-

can equitably toll a federal statute of limitations. See Nunnally v. MacCausland, 996 F.2d 1, 5 (1st Cir. 1993) (per curiam) (applying equitable tolling in the context of the Civil Service Reform Act). We see no reason for refusing to extend that principle to the AEDPA context. We hold, therefore, that mental illness can constitute an extraordina r y circumstance, which may prevent a habeas petitioner from understanding and acting upon his legal r i g hts and thereby equitably toll the AEDPA limitations period.

We proceed now to the s e c o n d dimension of our inquiry. Mental illness does no t p e r se toll the AEDPA limitations period. See Bolarinwa, 593 F.3d at 23 2; Hunter, 587 F.3d at 1308. There must be some causal link between a petitioner's mental illness and his ab i l i t y seasonably to file for habeas relief. See, e.g., Bolarinwa, 593 F.3d at 232 (requiring that petitioner "demonstrate that her particul ar disability constituted an 'extraordinary circumstance' seve r e l yimpairing her ability to comply with the filing deadline, despite her diligent efforts to do so"); Hunter, 587 F.3d at 1308 (stating that "the alleged mental impairment must have affected the petitioner's ability to file a timely habeas petition"); Laws, 351 F.3d at 923 (allowing tolling so long as the "petitioner's mental incompetence in fact caused him to fail to meet the AEDPA filin g d e a d line"); cf. Holland, 130 S. Ct. at 2562 (req u i r i ng a habeas petitioner to show that "some extraordinary circumstance . . . prevented timely filing").-10- In our view, a habeas petitioner satisfies the causation requirement if he can show that, during the relevant time frame, he

s u f f e r e d from a mental illness or impairment that so severely impaired his ability either effectivel y to pursue legal relief to his own behoof or, if represented, ef f e c tively to assist and communicate w i t h counsel. See Nunnally, 996 F.2d at 6-7 (framing the question as "whether plaintiff's mental condition rendered her incapable of ration ally cooperating with any counsel, and/or pursuing her claim on her own during the limitations period"). If a habeas petitioner satisfies this standard, he should not be held strictly accountable for complying with the AEDPA's filing deadline.

In the case at ha n d , t h e district court ruled that the petitioner's mental illness was not sufficiently disabling to toll the limitations period. Riva, 2007 WL 954771, at *6. We review a district court's determination about whether a partic ular set of facts warrants equitable toll ing of the AEDPA's statute of limitations for abuse of discretion. See Cordl e v . G uarino, 428 F.3d 4 6 , 4 7 (1st Cir. 2005); Neverson, 366 F.3d at 42. Abuse of discretion is not a mon o l i t h i c standard of review; within it, abstract questions of law are reviewed de novo, findings of raw fact

are rev i e w e d for clear error, and judgment calls receive a classically deferential reception. See United States v. Lewis, 517 F.3d 20, 24 (1st C ir. 2008); Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 132 (1st Cir. 2005).Under Massachusetts practice such a motion must be filed no 2 later than sixty days from the date of sen t e n c i n g o r such later date when an appellate court either af f i r m s the conviction or denies review. See Mass. R. Crim. P. 29(a). -11- With this prelude, we turn to the time line in this case. The petitioner's conviction bec a m e final in 1985, well before Congress passed the AEDPA. Thus, the petitioner was entitled to a

o ne-year grace period running from April 24, 1996 (the AEDPA's effective date) within wh i c h t o seek federal habeas relief. See Delaney, 264 F.3d at 10; Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999) (per curiam).

The petitioner did not file t h e i nstant habeas petition until October 15, 2001. That was beyond the one-year grace period. Thus, absent tolling, the statute of limitations would have expired on April 24, 1997.

The petitioner's second motion to revise or revoke his sentence is of no help to him. Even though that motion was pending on April 24, 1996, it did not tol l t he limitations period because it was not a "properly filed application for State post-conviction or oth e r collateral review." 28 U.S.C. § 2244(d)(2). The motion to revise or revoke was filed in 1993, seve r a l years beyond the period designated for the filing of such a motion. It follows that 2 the motion was untimely, and an untimely state po st-conviction motion is not properly filed. See Pace, 544 U.S. at 414; Artuz v. Bennett, 531 U.S. 4, 8 (2000).The distric t court incorrectly stated that the statute of 3 limitations began to run anew on December 13, 1999, when the superior court denied the motion. See Riva, 2007 WL 954771, at *4. Tolling continued, however, as long as the state courts had the motion un d e rr e v i e w . S e e C u r r i e v . M a t e s a n z , 2 8 1 F . 3 d2 6 1 , 266 (1st Cir. 2 0 0 2) (explaining that a motion for new trial filed in Massachusetts remains pending from the time it is first filed until the time when the SJC denies further review). -12- The intervening period was partially tolled, however, by t h e p e ndency of the petitioner's fourth new trial motion in state court, so the clock did not run from March 17 , 1 9 9 9 (the date on which that motion was filed) to June 7, 2001 (the date on which the SJC denied the ALOFAR). The petitioner does not allege t h a t the 3 four-month period be t w e e n the latter date and his filing of the instant petition for a writ of habeas corpus was tolled. Consequently, the petition is time-barred unless the petitioner can sho w that his mental illness tolled the limitations period during most of the time span from April 24, 1996, to March 17, 1999 — what we shall call the "tolling period."

The medical reports in the record indicate quite clearly that t h e p etitioner suffered from a debilitating mental illness throughout the tolling interval. After his conviction, he was committed to Bridgewater for a total of seventeen years, including most recent l y f r o m 1990 to 1999. The documented symptoms of his paranoid schizophrenia included "bizarre delusions of a persecutory nature, paranoid idea tion, auditory hallucinations and somatic terrors."-13- The petitioner's annual master treatment plan, prepared

o n J u n e 28, 1996, confirms the incidence of these symptoms during t h e t o l ling period. For example, the plan indicates that the petitioner underwent "recent expe r i ences of auditory and visual hallucinations" and "urges to consume blood and flesh of others." It also describes his "poor, schizotypal presentation combined with [an] inability to manage bizarre impulses," which made him "a very high danger to himself and others." Under the heading "Identified Problem(s)," the plan notes a "delu sional system marked by violent/paranoid ideation."

The petitioner's position is f u rther bolstered by the testimonial evidence. In the distr ict court, the petitioner presented expert testimony vouchsafing that his mental illness precluded him from consistently and effectively pursuing legal relief until Augu s t of 1999 (that is, throughout the tolling period). His symptoms did not subside until the doctors changed his treatment protocol — a ch a n g e t hat led to his discharge from Bridgewater in August of 1999.

The petitioner's medical expert, Dr. Montgomery C. Brower, is a forensic psychiatrist and form e r d e p uty medical director at Bridgewater. He interviewed the petitioner in 2006 and reviewed the medical records and court filings. In an affidavit submitted to the district court, Dr. Brower explained that the petitioner was treated with anti-psychotic medications during his stay at Bridgewater and-14-

that, although his acute ps y c h o t ic symptoms improved with

m e d i cation, he nonetheless "continued to experience, and at times act upon, an obsessional preoccupation with t h e d e l usion that he

nee d e d t o obtain and consume human flesh." Dr. Brower explained that "this residual psychosis interfered with Mr. Riva's ability to sustain the attention and effort necessary for him consistently and effectively to pursue legal review on his own behalf." It was not until the petitioner's treatment with a new drug, Zyprexa, beginning in May of 1999, that his "delusional preoccupation with obtaining and consuming human flesh progressively diminished, fadin gaway completely within nine months to a year."

Dr. B r ower also examined the petitioner's writings made both before and after his treatment with Zyprexa. The psychiatrist concluded that "[d]ocuments written after . . . sho w better

o r g a n i z a t i o na n dg r e a t e rf l u e n c ya n df l e x i b i l i t yi nM r . R i v a 's thinking." The Commonwealth offered no expert testimony, so Dr. Brower's views are uncontradicted. Those views are consistent with the petitione r ' s a f fidavit, in which he declares that before the administration of Zyprexa, "I experienced periods of lucidity during which I was able to read, write, and think about my legal case. These periods of l u c i d ity were frequently disrupted by my preoccupation with obtaining and cons uming human flesh. Thus,-15-

b efore August 1999, I could not focus long and well enough to properly attend to my legal case."

The district court rejected the testimony of Dr. Brower, relying instead on (i) the court filings made by the petitioner from 1985 to 1999 and (ii) observ a t i o ns about the petitioner's intelligence (contained in the 1999 Bridgewater discharge summary). See Riva, 2007 WL 954771, at *5-6. Although a trial court need not accept uncontradicted expert testimony, see, e.g. , Parrilla-López v. United States, 841 F.2d 16, 19 ( 1 s t C ir. 1988), it must articul a t e a r e asoned basis for refusing to do so. The district court's reasoning was flawed.

For o n e t hing, the court's analysis of the petitioner's filings contains several factual errors. The court stated that the petitioner filed four pro se habeas petitions between 1985 and 1999. Riva, 2007 WL 954771, at *5. In fact, the petitione r filed three habeas petitions during that interval, only two of which were filed pro se. The court further stated that the petitioner made three pro se filings during the tolling period, referencing a 1996 motion for

newt r i a l , a1 9 9 8 p e t i t i o nf o rh a b e a s c o r p u s , a n da1 9 9 9 p e t i t ion for habeas corpus. Id. There was n o 1 9 9 6 p r o se motion for new trial. The record reflects that the p e t i t ioner's counsel filed a motion for new trial in 1995, and the peti tioner filed a pro se motion for new trial on March 17, 1999 (which tolled the running of the limitations period). To be sure, ther e was a 1998 habeas-16-

petition, but it was not filed pro se. There was no habeas petition filed in 1999.

Courts should not be held to a standard of perfection, and small factual errors — even a series o f small factual errors — do not necessarily undermine a trial court's ruling. But ev erything depends on con t e x t. Here, the court's factual errors are significant because, in the aggregate, they c a s t doubt upon its primary reason for rejecting the petitioner's uncontradicted expert testimony: the district court reasoned that the petit ioner's "repeated submiss i ons to courts" during the tolling period manifested his ability effect ively to exercise his legal rights. Id. at *6. The court's misapprehension of the relevant facts shakes our confidence in this conclusion.

Withal, there is one pro se filing reflected in the record during the tolling period: the petitioner's request voluntarily to dismiss his 1996 habeas petition based on exhaustion concerns. This filing tends to indicate the petitioner's understanding of his legal right s. But that motion, too, must be weighed in context. The record indicates that the petitioner never served the respondent in that case and, fo r a u g h t that appears, never made any substantive filings.
T he petitioner's 1998 habeas petition also falls within the tolling period. That petition, however, was drafted and filed by counsel retained by t h e p e titioner's father. There is no-17-

e v i d e n ce that the petitioner communicated with counsel regarding this filing; indeed, the petitioner alleges, a gain without contradiction in the record, that the petition was filed without his

con s e n t . T his is borne out, at least inferentially, by the fact that the petition was dismissed for want of prosecution.

A second — a n d d e eper — flaw in the district court's analysis is its heavy r e l i a n c e on the fact of the petitioner's filings as opposed to either their content or their quality. This flaw is e x a c e rbated by two other data points: the court's failure to address the petitioner's ability t o sustain the lucidity necessary to effectively pursue l e g a l redress once filings were effected, and its failure to consider whether the counselled filings enjoyed the petitioner's effective participation.

To illustrate, the district court relied on the fact that the petitioner, either pro se or through counsel, had taken a direct appeal and filed fou r new trial motions in the state courts. Id. at *5. Yet the court did not discount these filings at all despite the petitioner's obvious insanity at certain critical times (e.g., while counsel was pressing the second motion f o r n ew trial, the petitioner assaulted a correctional officer under a paranoid delusion and was recommitted to Bridgewater).

By the same to k e n , t he district court did not take into account that, after the petitioner's third motion for new trial was denied and the petitioner's counsel withdrew, the petitioner's pro-18-

se appeal was dismissed on F e b r u a ry 23, 1996, for want of prosecution. That dismissal, ignored by the district court, tends to support Dr. Brower's conclusion that, during the tolling period, the petitioner's "residual psychosis interfered with [his] ability to sustain the attention and effort necessary for him consistently and effectively to pursue legal review on his own behalf."

The final cause for concern involves the district court's reliance on a report of the petitioner's intellig e n c e . The court

rea soned that the petitioner's mental illness did not prevent him from complying with the filing deadline in part because his "overall cognitive abilities fall in the upper end of the average range." Id. But this is something of a non-sequitur. Th e petitioner is not claiming that he lacked the intelligence to comprehend and act upon his legal rights but, rather, tha t h e l acked the sanity necessary to consistently and effectively pursue his legal rights.

There is no necessary correlation between intelligence and sanity, and the petitione r's claim does not depend on his IQ. In fact, the very report that contained the information about the petitioner's high intelligence noted that his "test profile reflects considerable test scatter, suggestive of u n even and disrupted functioning." And Dr. Brower concluded that the petitioner's high IQ substantiated the diagnosis of schizophrenia because t h e large discrepancy between the petitioner's verbal and performance IQ "typically indicates an orga n i c abnormality in the functioning of-19-

the left hemisphere o f t he brain," which is "associated with schizotypal personality disorder and schizophrenia."

We have held that when a dist rict court "plainly consider[s] all the pertinent factors and no impertinent ones," and provides a "thorough explanation" of its reasoning, its "refusal to apply princ i p l e s of equitable tolling to salvage the petitioner's time-barred habeas application" does not cons t i t u te an abuse of discretion. Delaney, 264 F.3d at 15; see Donovan v. Maine, 276 F.3d 87, 93 (1st Cir. 2002). Here, however, the lower court failed to conside r r e l e vant factors such as the content and quality of the petitioner's court filings. To compound this oversight, the court relied on an impertinent factor: the petitioner's raw intelligence. Finally, the c o urt's explanation for rejecting the uncontroverted expert testimony depended on mi s c haracterizations of the facts. These difficulties, in combination, counsel against a finding that the district court acted within the encincture of its discretion in rejecting the petitioner's claim of equitable tolling.

Let u s b e p e r fectly clear. This is a complex case, in which various pieces of evidence point in different directions. It is a close call as to whether or not equitable tolling is warranted, and we do not suggest what that call ultimately should be. Here, however, there are simply too many unanswered questions to permit the judgm e n t b e low to stand. Accordingly, we vacate the judgment and remand to the district co u r t f o r further development of theThe petitioner argues in the alternative that his actual 4 innocence tolled the statute of limitations. See David, 318 F.3d at 347-48 (expressing skepticism as to whether a habeas petitioner's actual innocence can override the AEDPA's limitations period). The district court did not pass upon this claim. On remand, the district court should consider it. See Kuenzel v. Allen, 488 F.3d 1341, 1343 n.3 (11th Cir. 2007) (per curiam); see also López López v. Aran, 844 F.2d 898, 910 n.16 (1st Cir. 1988). -20- record with a view toward determining whe ther the petitioner's mental illness so severely impaired his ability effectively to pursue legal relief , e i t h er on his own behalf or through counsel, as to warrant equitable tolling of the AEDPA limitations period. 4 III. CONCLUSION

We need go no further. For the reasons elucidated above, we vacate the judgment and remand for further proceedings consistent with this opinion. Vacated and remanded.