In the

United States Court of Appeals

For the Seventh Circuit

No. 17-1631

CHARLES J. MAYBERRY, also known as

CHARLES J. HOMESLEY,

Petitioner-Appellant,

v.

MICHAEL A. DITTMANN,

Respondent-Appellee.

Appeal from the United States District Court for the 

Western District of Wisconsin.

No. 16 CV 47 — Barbara B. Crabb, Judge.

ARGUED APRIL 5, 2018 — DECIDED SEPTEMBER 14, 2018

Before KANNE, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. In 2008, Charles Mayberry was

convicted in Wisconsin state court of multiple counts of

second-degree sexual assault and one count of false imprisonment. Mayberry challenged his convictions on both direct and

collateral review in Wisconsin state court. After having one
2 No. 17-1631

federal petition for a writ of habeas corpus, 28 U.S.C. § 2254,

dismissed by the district court as premature, Mayberry fully

exhausted his state-court remedies and refiled his habeas

petition in the district court. By this point, however, the oneyear statute of limitations in the Anti-Terrorism and Effective

Death Penalty (“AEDPA”), 28 U.S.C. § 2244(d), had expired,

and so the district court dismissed Mayberry’s petition as

untimely. Mayberry acknowledges that his petition was filed

outside the one-year limitations period, but argues that he is

entitled to equitable tolling on account of his history of mental

illness, illiteracy, and lack of counsel to assist him. Alternatively, Mayberry argues that the district court should have held

an evidentiary hearing to determine whether his mental

limitations warranted equitable tolling. Because we conclude

that the district court did not abuse its discretion in concluding

that Mayberry failed to meet the high bar necessary to qualify

for equitable tolling, we affirm. 

I.

On November 6, 2008, a jury in Dane County Circuit Court

found Mayberry guilty of three counts of second-degree sexual

assault and one count of false imprisonment. The court entered

a judgment of conviction and sentenced Mayberry to twenty

years’ imprisonment on March 16, 2009. He appealed his

conviction, arguing that newly discovered evidence entitled

him to a new trial. The Wisconsin Court of Appeals affirmed

his conviction, and the Wisconsin Supreme Court denied his

petition for review on December 5, 2011. Mayberry did not

petition for certiorari in the United States Supreme Court, so

his conviction became “final” for purposes of habeas review

when the time for filing a certiorari petition expired 90 days
No. 17-1631 3

later, on March 5, 2012. See Anderson v. Litscher, 281 F.3d 672,

674 (7th Cir. 2002); 28 U.S.C. § 2244(d)(1)(A) (one-year limitations period runs from the date direct review concludes or the

expiration of time for seeking such review) (emphasis added).

Thus, beginning on March 6, 2012, Mayberry had one year

to file his federal habeas petition. On August 2, 2012, Mayberry

filed a motion for a new trial in state court, which stopped the

habeas clock from running until it was denied on August 15,

2012. The clock resumed the following day and continued

running until November 19, 2012, when Mayberry filed a

petition for a writ of habeas corpus in federal district court,

alleging ineffective assistance of counsel based on counsel’s

failure to investigate or raise the issue of Mayberry’s competence to stand trial. Mayberry’s petition stated that he had filed

a “letter/motion” in the state circuit court for postconviction

relief, but the circuit court’s docket contained no record of such

a filing. On January 7, 2013, the district court dismissed

Mayberry’s petition without prejudice for failure to exhaust his

state-court remedies. The court’s order explained that Mayberry needed to receive a decision from the state circuit court

and then “seek review in the Wisconsin Court of Appeals and

the Wisconsin Supreme Court” and invited Mayberry to “refile

a timely petition after he has finished presenting his claims to

the Wisconsin state courts.” Because 28 U.S.C. § 2244(d)(2)

excludes from the one-year limitations period only the time

that a properly filed state-court application for post-conviction

relief is pending, the clock on Mayberry’s one-year federal

habeas filing period continued to run while his unexhausted

habeas petition was in the district court. Thus, Mayberry’s oneyear limitations period expired on March 20, 2013. Not until
4 No. 17-1631

several months later, on June 26, 2013, did Mayberry did file a

post-conviction motion in the Circuit Court for Dane County.

Mayberry’s state court post-conviction motion, see Wis. Stat.

§ 974.06, repeated his argument that he had received ineffective assistance of counsel on account of counsel’s failure to

raise the issue of Mayberry’s competence. Mayberry included

a psychological evaluation from 1999 (in an entirely separate

proceeding) by Dr. Kent M. Berney deeming Mayberry

incompetent to stand trial and unlikely to “regain competency

in the requisite time frame of 12 months.” The state court held

a hearing and denied Mayberry’s motion on September 9, 2013.

The Wisconsin Court of Appeals summarily affirmed the

circuit court’s denial of Mayberry’s motion, and the Wisconsin

Supreme Court denied review on November 4, 2015. 

With the assistance of court-appointed counsel, Mayberry

then filed his fully exhausted habeas petition in district court

on January 20, 2016, approximately six months after his oneyear limitations period expired (after accounting for time

properly excluded under § 2244(d)(2) for the periods Mayberry’s state post-conviction motions were pending). He

repeated his claims of ineffective assistance of trial and

appellate counsel for failing to investigate whether he was

competent to stand trial. Recognizing that his petition was

untimely, Mayberry also argued that he was entitled to

equitable tolling on account of his mental limitations. 

The district court rejected Mayberry’s tolling argument,

concluding that Mayberry’s “conclusory assertions” regarding

his difficulties in filing a timely habeas petition were insufficient to support the extraordinary remedy of equitable tolling.
No. 17-1631 5

The court also noted that its conclusion regarding Mayberry’s

failure to show that his mental limitations were so severe as to

prevent him from understanding and pursuing his rights also

suggested that he likewise would have been unable to prevail

on the merits of his ineffective assistance of counsel claims. The

district court issued a certificate of appealability, see 28 U.S.C.

§ 2253(c)(2), on the procedural question of Mayberry’s entitlement to equitable tolling as well as his underlying claims of

ineffective assistance of counsel.

II.

With the assistance of court-appointed counsel on appeal,

Mayberry renews his contention that he is entitled to equitable

tolling. Alternatively, he argues that the district court should

have held an evidentiary hearing to assess the mental competence issue. Tied to these issues, of course, is his underlying

constitutional claim that his trial and appellate counsel were

ineffective for failing to raise the issue of his competence to

stand trial. Under AEDPA, a prisoner has one year from the

date his conviction becomes “final” to file his federal habeas

corpus petition. 28 U.S.C. § 2244(d)(1)(A). Equitable tolling of

AEDPA’s one-year limitations period is an extraordinary

remedy that is “rarely granted.” Carpenter v. Douma, 840 F.3d

867, 870 (7th Cir. 2016) (internal quotations and citation

omitted); Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2016). It

is not, however, “a chimera–something that exists only in the

imagination.” Socha v. Boughton, 763 F.3d 674, 684 (7th Cir.

2014). Rather, to satisfy the “high bar,” id. 763 F.3d at 684, for

equitable tolling, a habeas petitioner must demonstrate “‘(1)

that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way’ and
6 No. 17-1631

prevented timely filing.” E.g., Holland v. Florida, 560 U.S. 631,

649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). A petitioner bears the burden of establishing both

elements of the Holland test; failure to show either element will

disqualify him from eligibility for tolling. Menominee Indian

Tribe of Wisconsin v. United States, — U.S. —, 136 S. Ct. 750,

755–56 (2016); Lawrence v. Florida 549 U.S. 327, 336–37 (2007);

see also Carpenter, 840 F.3d at 870. We review the district court’s

conclusion that Mayberry was not entitled to equitable tolling

for an abuse of discretion. Schmid v. McCauley, 825 F.3d 348,

350 (7th Cir. 2016);Socha, 763 F.3d at 684.

Because the question of Mayberry’s diligence must be

evaluated in light of the broader picture of his mental limitations, we begin with the extraordinary circumstances prong of

the tolling inquiry. This requirement is intended to apply to

circumstances outside of the litigant’s control. The Supreme

Court reaffirmed in Menominee Indian Tribe that this element of

the equitable tolling test “is met only where the circumstances

that caused a litigant’s delay are both extraordinary and

beyond [his] control.” 136 S. Ct. at 756 (emphasis in original). 

Mayberry identifies a number of different facts to support

his claim that he suffers from mental limitations that prevented

him from filing a timely habeas petition. First, Mayberry notes

that he was in a serious car accident in the late 1980s that left

him in a coma for some period of time. He also reported

dropping out of school, where he had been enrolled in special

education classes, when he was only fifteen. And he relies

heavily on the 1999 psychological evaluation by Dr. Berney

finding him incompetent to stand trial. In it, Dr. Berney

concluded that Mayberry is functioning “in the mild range of
No. 17-1631 7

mental retardation.” He also reported that on the Wechsler

Adult Intelligence Scale III, Mayberry received Full Scale IQ of

64, which placed Mayberry in the intellectually impaired or

mentally retarded range. Mayberry also included a Columbia

Correctional Institution “inmate classification report” from

2014 with the following notation in the box labeled “Mental

Health Class”: “MH-2a- Serious Mental Illness (Diagnostic).”

Although it is unlikely that any of these circumstances in

isolation would justify equitable tolling, Mayberry insists that

taken together they rise to the necessary level of “extraordinary.” We have recognized that mental illness may toll a

statute of limitations, but “only if the illness in fact prevents the

sufferer from managing his affairs and thus from understanding his legal rights and acting upon them.” See Obriecht, 727

F.3d at 750–51 (emphasis in original) (quoting Miller v. Runyon,

77 F.3d 189, 191 (7th Cir. 1996)). And Mayberry is also correct

that we must consider “the entire hand” he was dealt and

consider all of the circumstances he faced “and the cumulative

effect of those circumstances” to determine whether they were

sufficiently extraordinary to prevent him from timely filing his

petition. See Socha 763 F.3d at 686.

The problem with Mayberry’s claim is that so little of his

evidence of his mental disability sheds light on the relevant

time period for purposes of tolling. That Mayberry was found

incompetent to stand trial in 1999 does little to demonstrate

that his mental challenges prevented him from understanding

and acting on his legal rights between 2012 when his conviction became final and 2016 when he filed his § 2254 petition.

This is especially true here, where the state has countered with

evidence that Mayberry was later found competent to stand
8 No. 17-1631

trial in that very 1999 proceeding for which Dr. Berney’s report

was prepared, as well as two subsequent state-court proceedings in 2000 and 2004. Mayberry fails to explain how this past

finding of incompetence, his low I.Q., or an unelaborated

prison classification of “serious mental illness” “actually

impaired his ability to pursue his claims.” Obriecht, 727 F.3d at

751. Indeed, the record indicates that within the one-year

limitations period (presumably while suffering from all of

these mental limitations), Mayberry managed to file a motion

for a new trial in state court as well as the premature federal

habeas petition he filed in the district court in November 2012.

He also was able to eventually file his motion for post-conviction relief in state court, albeit after the his one-year limitations

period had expired. 

But he fails to point to anything specific transpiring

between the filing of his unexhausted petition in 2012 and his

eventual filing in January 2016 of his § 2254 petition that

interfered with his inability to understand or pursue his habeas

claim. Thus, although Mayberry’s mental limitations undoubtedly made filing a petition for habeas corpus difficult, the

district court did not abuse its discretion by concluding that he

failed to show how those difficulties affected him during the

relevant time period to such an extent that he qualifies for the

extraordinary remedy of equitable tolling. See Carpenter, 840

F.3d at 873; see also Boulb v. United States, 818 F.3d 334, 340 (7th

Cir. 2016) (petitioner’s allegations that he was “functionally

illiterate” and “intellectually disabled” too “conclusory” to

justify an evidentiary hearing).

Because we agree with the district court that Mayberry has

failed to establish the requisite extraordinary circumstances, it
No. 17-1631 9

is unnecessary to address his arguments regarding the first

element—whether he diligently pursued his rights throughout

the AEDPA period. Because the district court addressed this

element, however, we too briefly consider it for completeness.

Although the diligence required for equitable tolling is

“reasonable diligence” not “maximum feasible diligence,”

Holland, 560 U.S. at 653 internal quotations and citation

omitted), mere conclusory allegations of diligence are insufficient and reasonable effort throughout the limitations period

is required, Carpenter, 840 F.3d at 870.

In support of his claim of reasonable diligence, Mayberry

points to those actions he did take toward filing his properly

exhausted habeas petition, including fully appealing his

underlying conviction, filing a motion for a new trial, filing his

unexhausted petition in district court, and an October 4, 2013

letter seeking assistance from the state public defender’s office.

That letter, sent over six months after the March 2013 expiration of the statute of limitations, explains that he had recently

lost the assistance of an inmate who had helped him file his

state post-conviction petition in June 2013. It fails, however, to

shed any light on why Mayberry was unable to promptly file

his post-conviction petition in state court once the district court

dismissed his unexhausted federal petition in January 2013.

Given the lack of any specific evidence as to particular hurdles

Mayberry encountered in timely pursuing his claim, it was not

an abuse of the district court’s discretion to conclude that

Mayberry’s evidence of reasonable diligence lacked the

specificity necessary to entitle him to equitable tolling. Compare

Socha, 763 F.3d at 687–88 (petitioner established that he

diligently pursued rights during limitations period with
10 No. 17-1631

evidence that he repeatedly wrote his attorney requesting

access to his file, requested help from the public defender’s

office, used limited library time to work on his petition, and

contacted the court before time expired to ask for an extension)

with Carpenter, 840 F.3d at 871 (motions requesting a stay were

insufficient to establish reasonable diligence given that after

filing requests for an extension petitioner waited until nearly

seven months after limitations period expired to file habeas

petition).

Finally, we are also unpersuaded that the district court

abused its discretion by failing to hold an evidentiary hearing

into the issue of Mayberry’s competence. See Boulb, 818 F.3d at

339 (decision whether or not to hold evidentiary hearing in

habeas context is reviewed for abuse of discretion). The district

court need not hold an evidentiary hearing for vague or

conclusory allegations. Bruce v. United States, 256 F.3d 592, 597

(7th Cir. 2001). Rather, a hearing is warranted when a petitioner alleges facts, which if proven, would entitle him to relief.

Boulb, 818 F.3d at 339.

As discussed above, Mayberry provided little in the way of

specific evidence as to his mental capacity both during the

period he requested tolling or at the time of his trial in 2008.

The evidence Mayberry did provide—the 1999 competency

evaluation, the bare 2014 notation in his prison record that he

has “a serious mental illness,” and generalized evidence of

limited education and intellectual functioning—fails to

demonstrate that he was incompetent to stand trial in 2008.

There is thus little reason to believe Mayberry could succeed

on the merits of his underlying claims of ineffective assistance

of counsel. As such, it was not an abuse of the district court’s
No. 17-1631 11

discretion to decline to hold a hearing to evaluate Mayberry’s

competency as it relates to his equitable tolling claim. Carpenter, 840 F.3d at 871. 

III.

For the foregoing reasons, we AFFIRM the district court’s

judgment dismissing Mayberry’s petition for a writ of habeas

corpus under 28 U.S.C. § 2254 as untimely.