### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3624

B ILL C ONROY

,

Petitioner

‐ Appellant

,

v.

S COTT T HOMPSON

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:16

‐ cv

‐ 00338

— David R. Herndon

, Judge

.

____________________

A RGUED F EBRUARY 21, 2019

— D ECIDED J ULY 11, 2019

____________________

Before E ASTERBROOK

, S YKES

, and B ARRETT

, Circuit Judges

.

B ARRETT

, Circuit Judge

. Bill Conroy filed a petition for a

writ of habeas corpus in 2016 to challenge an Illinois state

court conviction from 2007. Although he admitted that he had

not filed his petition within the one

‐ year limitations period,

he claimed that his mental condition justified equitable toll

‐ ing. The district court disagreed, concluding both that his pe

‐

tition was untimely and that he had not met the high bar nec

‐

essary to establish equitable tolling. We agree and affirm.2 No. 17

‐ 3624

I.

In 2004, Bill Conroy was indicted in Illinois state court for

solicitation of murder, solicitation of murder for hire, and at

‐ tempted first

‐ degree murder. Before trial, the state court held

a hearing to determine his competency to stand trial. After

hearing from two state experts and one defense expert, the

court determined that Conroy was fit to stand trial. On May

8, 2007, Conroy pleaded guilty and was sentenced to thirty

years in prison. He did not appeal.

Later in 2007, Conroy received mental health services

through the Illinois Department of Corrections and was diag

‐

nosed with depressive and schizoaffective disorders. In 2008,

however, Conroy’s mental evaluations indicated that he was

“alert and oriented,” that his “[t]hought processes were logi

‐

cal, coherent and goal directed,” and that his “[i]nsight and

judgment were fair.” His psychiatrist also noted in one 2008

report that Conroy “denied any auditory [or] visual halluci

‐

nations or delusions.”

In 2009, Conroy filed a postconviction petition in state

court arguing, among other things, that his counsel provided

ineffective assistance by not investigating his case and by co

‐ ercing him into pleading guilty. The state trial court rejected

Conroy’s arguments, and the state appellate court affirmed.

In 2014, Conroy filed several other postconviction motions in

state court, which were denied. Throughout this time, Conroy

unsuccessfully sought help with his legal issues from the

prison library staff. He also says that because he had no

money, he was unable to hire “prison lawyers” to help him.

In 2016, Conroy filed a pro se petition in federal court un

‐

der 28 U.S.C. § 2254, which permits persons in state custodyNo. 17

‐ 3624 3

to apply for habeas relief on the ground that their custody vi

‐

olates the Constitution or laws of the United States. Because

Conroy named the wrong respondent, however, the district

court dismissed his petition without prejudice and appointed

a federal public defender to help him amend it. In the

amended petition, Conroy alleged that his trial counsel was

ineffective in arguing that he was not fit to stand trial. Conroy

also argued that the timing for filing his petition should be

equitably tolled because his mental limitations prevented him

from understanding his legal rights from 2008 until he filed

his petition in 2016.

The state nevertheless moved to dismiss the petition as un

‐ timely and argued that Conroy was not entitled to equitable

tolling. The district court agreed. It determined that Conroy’s

mental limitations were not an extraordinary circumstance

and that he had failed to show that he had been reasonably

diligent in pursing his claim throughout the limitations pe

‐

riod. So there was no basis for equitably tolling the time for

filing the petition. The court also denied Conroy a certificate

of appealability.

Conroy sought a certificate of appealability, and we

granted it on two questions: (1) whether Conroy is entitled to

equitable tolling, and (2) “whether trial counsel was ineffec

‐

tive for not arguing that the state psychologist’s evaluation

revealed” that Conroy was unfit to stand trial. Because we

agree with the district court that Conroy’s untimely petition

is not entitled to equitable tolling, we need only address the

former.4 No. 17

‐ 3624

II.

The government initially argued that Conroy’s amended

petition constituted a second or successive petition because

the district court dismissed his first petition without prejudice

for failing to name the correct respondent. If that were true, it

would have required Conroy to get our permission before fil

‐ ing with the district court. See 28 U.S.C. § 2244(b)(3). But as

the government correctly acknowledged before oral argu

‐

ment, when a district court dismisses a petition without prej

‐

udice because of a technical or procedural deficiency, the

cured second petition counts as the first. See Pavlovsky v. Van

‐

Natta

, 431 F.3d 1063, 1064 (7th Cir. 2005). Conroy’s petition,

therefore, is not a second or successive petition, and his ap

‐ peal is properly before us.

We next consider the timeliness of Conroy’s § 2254 peti

‐

tion. We review for abuse of discretion the district court’s de

‐

cision concluding that Conroy’s untimely petition was not en

‐

titled to equitable tolling, see Lombardo v. United States

, 860

F.3d 547, 551 (7th Cir. 2017), and we see none here.

A state prisoner generally has only one year from the date

that his conviction becomes final to seek federal habeas cor

‐

pus relief. § 2244(d)(1)(A). Conroy’s conviction became final

on June 7, 2007, so the limitations period for filing a habeas

petition expired on June 7, 2008. Conroy didn’t file his habeas

petition until 2016. Although Conroy admits that he did not

meet the one

‐ year time bar, he argues that mental limita

‐

tions—that he is illiterate, has emotional issues, and was di

‐ agnosed with schizoaffective disorder—entitle him to equita

‐

ble tolling.No. 17

‐ 3624 5

A petitioner is entitled to equitable tolling only if he can

show both that extraordinary circumstances prevented him

from timely filing and that he has been diligently pursuing his

rights. Holland v. Florida

, 560 U.S. 631, 649 (2010). We have re

‐ peatedly emphasized that such tolling is rare—reserved for

those circumstances “far beyond the litigant’s control.” Socha

v. Boughton

, 763 F.3d 674, 684 (7th Cir. 2014) (citation omitted).

Mental incompetency may constitute an extraordinary cir

‐

cumstance that justifies equitable tolling, but “only if the ill

‐

ness in fact prevents the sufferer from managing his affairs

and thus from understanding his legal rights and acting upon

them.” Miller v. Runyon

, 77 F.3d 189, 191 (7th Cir. 1996). We’ve

said that this means that the petitioner must provide evidence

establishing that his mental issues “actually impaired his abil

‐ ity to pursue his claims” throughout the limitations period.

See Mayberry v. Dittmann

, 904 F.3d 525, 531 (7th Cir. 2018)

(quoting Obriecht v. Foster

, 727 F.3d 744, 751 (7th Cir. 2013));

see also Davis v. Humphreys

, 747 F.3d 497, 500 (7th Cir. 2014)

(explaining that the petitioner must show “[s]omething more

than but

‐ for causation”).

Conroy’s evidence falls far short of this standard. We must

note first that Conroy was found competent to stand trial by

the Illinois state court in 2006. And he has not provided evi

‐

dence establishing that his mental issues drastically deterio

‐

rated after that presumptively correct finding. See 28 U.S.C.

§ 2254(e). In fact, the record reveals that the opposite is true.

Take the fact that, in 2008, Conroy’s psychiatrist found

that his “[t]hought processes were logical, coherent and goal

directed” and that his “[i]nsight and judgment were fair.”

This determination casts serious doubt on Conroy’s assertion6 No. 17

‐ 3624

that he had the kind of mental deficiency that would consti

‐

tute an extraordinary circumstance. Moreover, Conroy filed

both a post

‐ conviction petition and a request for counsel with

the state court in 2009, and he filed several additional motions

with the state court in 2014. These filings show that Conroy

had the capacity to engage in the legal process. See Obriecht

,

727 F.3d at 751 (concluding that the petitioner failed to estab

‐

lish a basis for equitable tolling when he “filed direct and col

‐

lateral appeals in state court between 2003 and June 2005, the

period during which he asserts that his mental health pre

‐

vented him from seeking state review of his claims in this

case”). Finally, most damning of all, Conroy originally at

‐

tributed his failure to timely file his habeas petition not to

mental limitation, but to the fact that he “was unaware of time

limits.” See Davis

, 747 F.3d at 500 (“[P]risoners’ shortcomings

of knowledge about the AEDPA or the law of criminal proce

‐

dure in general do not support tolling.”).

Given these facts, the district court was well within its dis

‐

cretion to conclude that Conroy failed to prove that extraor

‐ dinary circumstances prevented him from timely filing. See

Mayberry

, 904 F.3d at 531 (“[A]lthough [the petitioner’s] men

‐

tal 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.”). We thus need not consider whether he diligently

pursued his rights.

We AFFIRM the district court’s judgment concluding that

Conroy’s untimely petition did not warrant equitable tolling.