                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0552n.06

                                           No. 15-6363                                  FILED
                                                                                  Sep 28, 2016
                           UNITED STATES COURT OF APPEALS
                                                                              DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


ROY STILTNER,                                     )
                                                  )
           Petitioner-Appellant,                  )         ON APPEAL FROM THE
                                                  )         UNITED STATES DISTRICT
v.                                                )         COURT FOR THE EASTERN
                                                  )         DISTRICT OF KENTUCKY
DEEDRA HART, Warden,                              )
                                                  )
                                                                     OPINION
           Respondent-Appellee.                   )
                                                  )


Before: MOORE, McKEAGUE, and DONALD, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Roy Stiltner, a seventy-year-old man

currently serving a life sentence in a Kentucky state prison, appeals the district court’s dismissal

of his petition for a writ of habeas corpus. The petition, which Stiltner filed in 2013, was sixteen

years late. Stiltner argued that he was entitled to equitable tolling due to mental incompetence,

but the district court disagreed, concluding that although Stiltner is mentally incompetent, he did

not diligently pursue his claims. Because Stiltner did diligently pursue his claims to the extent

that he understood them, he is entitled to equitable tolling. We therefore REVERSE the district

court’s dismissal of the petition and REMAND for further proceedings consistent with this

opinion.
No. 15-6363, Stiltner v. Hart


                                            I. BACKGROUND

A. Petition for Writ of Habeas Corpus

       On May 12, 1986, Roy Stiltner pleaded guilty to murder, and a state court sentenced him

to life in prison. R. 10-3 (App. Vol. I at 14, 16‒18, 19‒22) (Page ID #140, 142‒145, 145‒48).

Stiltner did not appeal. Ten years later, Congress enacted the Antiterrorism and Effective Death

Penalty Act, or AEDPA. Pub. L. No. 104-132, 110 Stat. 1214 (1996). AEDPA amended

28 U.S.C. § 2244 to include a one-year period of limitations for habeas petitions brought by

prisoners challenging state-court judgments. See 28 U.S.C. § 2244(d)(1)(A). Prisoners whose

convictions were finalized before Congress enacted AEDPA had one year after AEDPA’s

effective date of April 24, 1996 to file habeas petitions. Cook v. Stegall, 295 F.3d 517, 519 (6th

Cir. 2002). Stiltner, therefore, had until April 24, 1997 to file a habeas petition.

       On April 22, 2013, almost sixteen years after the filing deadline had passed, Stiltner filed

a habeas petition in the United States District Court for the Western District of Kentucky. 1 R. 1

(Habeas Pet.) (Page ID #1).       Stiltner’s petition stated two grounds for relief:      ineffective

assistance of counsel for advising Stiltner to plead guilty even though he was “mentally retarded”

and ineffective assistance of counsel for failing to inform Stiltner of his right to appeal. Id. at 6,

8 (Page ID #5, 7). Stiltner acknowledged that his petition was untimely, but argued that he was

entitled to equitable tolling due to “mental retardation.” Id. at 15 (Page ID #14); see also R. 1-1

(Mem. in Support of Habeas Pet. at 1‒9) (Page ID #17‒25).



       1
        The case was later transferred to the Eastern District of Kentucky.             R. 4 (Order
Transferring Case) (Page ID #80).

                                                  2
No. 15-6363, Stiltner v. Hart


       The district court expressed skepticism as to whether mental retardation entitled a

petitioner to equitable tolling, but allowed the parties to brief the issue. R. 7 (First Order to

Show Cause at 2‒3) (Page ID #87‒88); R. 8 (Petr. Resp. to First Order to Show Cause) (Page ID

#89); R. 10 (Respt. Resp. to First Order to Show Cause) (Page ID #108); R. 12 (Petr. Reply to

First Order to Show Cause) (Page ID #315). Instead of ruling on equitable tolling, however, the

district court turned its attention to a different basis for dismissal: failure to exhaust state

remedies. R. 13 (Second Order to Show Cause at 1‒2) (Page ID #327‒28). The district court

concluded that Stiltner had not met AEDPA’s exhaustion requirements and dismissed Stiltner’s

petition without prejudice. R. 16 (Order Dismissing Habeas Pet.) (Page ID #336). Stiltner filed

an amended petition on April 15, 2014, R. 17 (Am. Habeas Pet.) (Page ID #337), and the district

court concluded that Stiltner had fulfilled AEDPA’s exhaustion requirements and ordered an

evidentiary hearing on equitable tolling, R. 22 (Order re: Evidentiary Hr’g at 2‒3, 7) (Page ID

#424‒25, 429). The district court also appointed counsel for Stiltner. R. 25 (Order Appointing

Counsel) (Page ID #437).

B. Evidentiary Hearing

       The evidentiary hearing focused on the extent of Stiltner’s “mental retardation.” See R.

17 (Am. Habeas Pet. at 15) (Page ID #350). The district court heard testimony from Dr. Eric

Drogin, David Blair and Scot Gaither—two of Stiltner’s fellow prisoners, and Stiltner himself.

R. 84 (Tr. of Evidentiary Hr’g at 2) (Page ID #800).

       Drogin testified that he first examined Stiltner in 2006 on behalf of Kentucky’s

Department of Public Advocacy. Id. at 11, 15 (Page ID #809, 813). As part of this assessment,


                                                3
No. 15-6363, Stiltner v. Hart


Drogin administered an IQ test called the Wechsler Adult Intelligence Scale (“WAIS”), “the

most commonly used full test of intelligence.” Id. at 13 (Page ID #811). The version of WAIS

that Drogin administered included a full-scale IQ score as well as a verbal IQ score (which

measures an individual’s ability to process language) and a performance IQ score (which

measures an individual’s ability to complete tasks). Id. at 15 (Page ID 813). Drogin testified

that most adults receive a full-scale IQ score between 85 and 115, but that Stiltner received a 62,

which is “within a range that is typically associated with what [clinical psychologists previously]

called ‘mental retardation’ and currently refer to as ‘intellectual disability.’” Id. at 14‒15 (Page

ID #812‒13). Stiltner also received a verbal IQ score of 64 and a performance IQ score of 65.

Id. at 15‒17 (Page ID #813‒15). When asked how Stiltner’s full-scale IQ score could be lower

than his verbal IQ score or his performance IQ score, Drogin answered that the full-scale IQ

score is not a combination of the other two scores, but rather is a more comprehensive score that

is compared to a “standardization sample.” Id. at 17 (Page ID #815). Drogin explained that the

reason that Stiltner’s full-scale IQ score was lower than the other two scores was “because of

how unusual it is that somebody would perform so poorly in both of those areas at the same

time.” Id.

       Drogin also tested Stiltner’s logical reasoning skills by asking him to explain

relationships between objects—such as how a boat and a car are similar. Id. at 22 (Page ID

#820). Stiltner could not answer any of Drogin’s questions correctly. Id. On a separate

vocabulary test, Stiltner scored in the third percentile, which Drogin explained meant that, out of




                                                 4
No. 15-6363, Stiltner v. Hart


100 people in Stiltner’s age group, Stiltner would be expected to do better than only three of the

100 “in terms of understanding words that are spoken to him.” Id. at 25 (Page ID #823).

        Drogin also administered a “cognitive capacity screening examination.” Id. at 26 (Page

ID #824). Drogin determined that Stiltner was aware of the date and that he was in prison, but

that Stiltner “had some difficulty nailing down the location [of the prison].” Id. at 27 (Page ID

#825). Stiltner’s responses also evinced a very limited short-term memory. Id. at 28 (Page ID

#826). Drogin concluded that Stiltner had “diminished cognitive capacity,” in that he had

“difficulty doing things that by in large we would expect normal people to be able to do.” Id.

When asked what those things might be, Drogin said, “[things] [s]uch as tell you what town they

have been in for the last several years, such as being able to remember some simple things that

you ask them to remember, such as being able to do very basic repetition of numbers that you

give them.” Id.

        The district court also heard testimony from two of Stiltner’s fellow prisoners: Blair and

Gaither. Blair was in prison with Stiltner in the 1990s and then again in the early 2000s. Id. at

65 (Page ID #863).       Blair spent a lot of time with Stiltner—in the 1990s, the two were

roommates. Id. Blair testified that, from his perspective, Stiltner has the mental capacity of “a

2 or a 5-year-old.” Id. at 82 (Page ID #880). An exchange between Blair and Stiltner’s attorney

is illustrative:

                   Q.   Did you ever see [Stiltner] watch any TV shows?
                   A.   Yeah.
                   Q.   Do you recall any specific ones?
                   A.   Westerns mostly, stuff like that.



                                                5
No. 15-6363, Stiltner v. Hart


               Q.     Do you recall if he thought that they were real or they were
                      make believe?
               A.     A couple of them he thought was real, yeah.
               Q.     Which ones did he think were real?
               A.     I think it was when John Wayne, some kind of El Dorado
                      or something like that, El Dorado.
               Q.     So he thought it was real life?
               A.     He thought it was real life, yeah.

Id. at 83 (Page ID #881).

       Blair started helping Stiltner with his case in the 1990s. Id. at 67 (Page ID #865). When

asked why he started helping Stiltner, Blair explained that once, when Blair was talking to

another prisoner about that prisoner’s case, Stiltner walked up to Blair and said, “I was -- I get

something done on mine.”        Id.   Stiltner then turned and left.   Id. at 82 (Page ID #880).

According to Blair, this was typical for Stiltner, who walked around “like he was in a daze all the

time.” Id. at 66 (Page ID #864). Although Stiltner never told Blair what he meant by “I get

something done on mine,” Blair assumed that Stiltner meant he wanted legal help, and Blair

started working on a motion to vacate, set aside, or correct Stiltner’s sentence under Kentucky

Rule of Criminal Procedure 11.42, which Blair did not file until 2004. Id. at 68 (Page ID #866);

see also R. 1-8 (Rule 11.42 Mot.) (Page ID #53). The Rule 11.42 motion sought relief based on

Stiltner’s significant cognitive impairments. R. 84 (Tr. of Evidentiary Hr’g at 68) (Page ID

#866); see also R. 1-8 (Rule 11.42 Mot.) (Page ID #53). As part of his efforts, Blair also filed a

form requesting the factual contents of an investigation report in 1995. R. 84 (Tr. of Evidentiary

Hr’g at 69‒70) (Page ID #867‒68); see also R. 43-8 (Req. for Factual Contents of Investigation

Report) (Page ID #533). Stiltner was not involved with any of the filings. R. 84 (Tr. of



                                                 6
No. 15-6363, Stiltner v. Hart


Evidentiary Hr’g at 70) (Page ID #868). According to Blair, “[h]e looked at them, but he -- he

just walked away when he looked at them.” Id. Stiltner never asked Blair questions about the

work Blair was doing. Id. at 70‒76, 81‒82 (Page ID #868‒74, 879‒880). As Blair testified,

Stiltner could not read or write, and he had a “[r]eal short” attention span. Id. at 71, 75‒76 (Page

ID #869, 873‒874).

        The district court then heard from Gaither, who filed Stiltner’s habeas petition for him.

Id. at 88 (Page ID #886). A year prior, Gaither also filed a post-conviction motion for Stiltner

pursuant to Kentucky Rule of Civil Procedure 60.02. Id. at 101 (Page ID #899); see also R. 10-6

(App. Vol. IV at 8) (Page ID #254). Gaither explained that Stiltner never asked Gaither to help

him; rather, it was Stiltner’s roommate, Tim Fancher, who reached out to Gaither and asked

Gaither to work on Stiltner’s case. R. 84 (Tr. of Evidentiary Hr’g at 89) (Page ID #887). Other

than accompanying Gaither to the mail room when Gaither sent documents to the court (which

Stiltner was required to do because “an inmate has to be in the mailroom to mail [his] own

document[s]”), Stiltner was not involved with any of the filings. Id. at 90‒93 (Page ID #888‒

91). Stiltner did not even write the return address on the mail that Gaither sent to the court. Id.

at 93 (Page ID #891).

        When asked if he had ever seen Stiltner write anything other than his own name, Gaither

testified that he had not. Id. at 94 (Page ID #892). Gaither explained that Stiltner cannot even

fill out a canteen sheet:

                Q.      Have you ever seen [Stiltner] print anything other than his
                        name?



                                                 7
No. 15-6363, Stiltner v. Hart


               A.      We have tried to get him to print things off his canteen
                       sheet. We have to help him fill out his canteen sheets. But
                       he really can’t even do that without us there. And say he
                       wants to order cheese puffs, and we had to spell cheese
                       puffs, like, “Roy, c-h-e-e-s-e p-u-f-f-s.” And he can write
                       that down if we spell it for him or he can print it.
               Q.      But he can’t do it by himself?
               A.      He can’t do it by himself.

Id. Gaither further testified that Stiltner’s memory is so poor that he cannot identify items on the

canteen sheet—such as coffee—that he has ordered every single month for years. Id. at 95‒96

(Page ID #893‒94). When asked if he thought Stiltner understood what was happening in his

case, Gaither replied, “No, ma’am.” Id. at 92 (Page ID #890).

       Finally, the district court heard from Stiltner. Stiltner’s testimony revealed that he had a

very limited understanding of the proceedings and of the legal assistance that he had received.

When asked if he knew what filing the evidentiary hearing concerned, Stiltner replied, “No.” Id.

at 129 (Page ID #927). When asked if Blair ever filed anything on his behalf, Stiltner replied,

“Not to my knowledge.” Id. When asked if Fancher (Stiltner’s roommate, who worked on

Stiltner’s case before recruiting Gaither) ever filed anything on his behalf, Stiltner replied,

“I don’t think so.” Id. And when asked if Gaither ever filed anything on his behalf, Stiltner said

“Maybe.” Id. He also testified that, as best he could remember, he had not met with an attorney

after pleading guilty in 1986. Id. at 137 (Page ID #935).

C. Dismissal and Appeal

       The Magistrate Judge issued a report a few months after the hearing. R. 91 (R. & R.)

(Page ID #1100). Applying a two-prong test, the Magistrate Judge first considered whether



                                                 8
No. 15-6363, Stiltner v. Hart


Stiltner was either unable “to personally understand the need to timely file” a habeas petition or

was “unable personally to prepare a habeas petition and effectuate its filing.” Id. at 15 (Page ID

#1114). Although Stiltner needed to meet only one of these conditions, the Magistrate Judge

determined that Stiltner met both. Id. at 16 (Page ID #1115). The Magistrate Judge found the

evidence of Stiltner’s mental incompetence convincing, and noted that the Warden had not

introduced “any contrary medical records or testimony.” Id. at 17 (Page ID #1116). The

Magistrate Judge was also persuaded by Blair’s and Gaither’s “credible testimony” that they had

initiated all of the filings. Id. at 17‒18 (Page ID #1116‒17).

       The Magistrate Judge then considered the second prong of the test: whether Stiltner had

diligently pursued his rights. Id. at 18 (Page ID #1117). The Magistrate Judge determined that

Stiltner had not. Id. The legal assistance that Stiltner received, the Magistrate Judge reasoned,

severed the causal link between Stiltner’s mental incompetence and his failure to timely file a

habeas petition. Id. The Magistrate Judge focused on two requests for information made on

Stiltner’s behalf, one by Stiltner’s fellow inmate Blair requesting the factual contents of an

investigation report and the other by a paralegal with Kentucky’s Department of Public

Advocacy requesting legal records. Id. at 19 (Page ID #1118); see also R. 43-8 (Req. for Factual

Contents of Investigation Report) (Page ID #533); R. 10-3 (App. Vol. I at 23) (Page ID #149).

The Magistrate Judge determined that these requests, together with two medical release forms

that Stiltner had signed (forms that named a public defender as Stiltner’s attorney), established

that Stiltner had legal assistance during the limitations period. R. 91 (R. & R. at 19) (Page ID

#1118); see also R. 90-1 (Medical Release Forms) (Page ID #1098‒99). Although there was no


                                                 9
No. 15-6363, Stiltner v. Hart


other evidence in the record of the Department of Public Advocacy’s involvement in Stiltner’s

case during the limitations period, the Magistrate Judge found the requests and the medical

releases sufficient:

        Although Stiltner’s disability made it practically impossible for him to file his
        own petition, the record reveals three legally knowledgeable individuals [Blair,
        the paralegal, and the public defender] who were helping him on his case—
        whether he understood what they were doing or not—during the limitations
        period. Case law suggests that equitable tolling is unavailable under these
        circumstances.

R. 91 (R. & R. at 19) (Page ID #1118) (emphasis added).

        The Magistrate Judge further determined that Blair’s Rule 11.42 motion to vacate, set

aside, or otherwise correct Stiltner’s sentence based on Stiltner’s mental incompetence provided

“another basis for finding that Stiltner was not diligently pursuing his rights.” Id. at 22 (Page ID

#1121). The Magistrate Judge explained that the Rule 11.42 motion demonstrated not only that

Stiltner had legal assistance, but also that the person providing this assistance—Blair—was

aware of Stiltner’s mental incompetence and therefore could have filed a habeas petition based

on those grounds (although this habeas petition would have still been seven years late). Id. at

22‒23 (Page ID #1121‒22). The Magistrate Judge also noted that, as a result of Blair’s Rule

11.42 motion, the state assigned a public defender to Stiltner’s case. Id. at 23 (Page ID #1122).

In 2006, that public defender asked Drogin to examine Stiltner. Id.; see also R. 84 (Tr. of

Evidentiary Hr’g at 11) (Page ID #809). A year after that, in 2007, the public defender filed a

supplemental pleading to Blair’s Rule 11.42 motion as well as a motion for equitable tolling and

a motion for a court-ordered evaluation of Stiltner’s mental incompetency. R. 91 (R. & R. at 23)

(Page ID #1122); see also R. 10-4 (App. Vol. II at 1) (Page ID #170). When the state court

                                                10
No. 15-6363, Stiltner v. Hart


denied Blair’s Rule 11.42 motion, the public defender filed a notice of appeal in 2007 and a

different public defender filed the actual appeal in 2008. R. 91 (R. & R. at 23) (Page ID #1122);

see also R. 10-4 (App. Vol. II at 18, 20) (Page ID #187, 189). Thus, despite Stiltner’s severe

mental incompetence, the Magistrate Judge recommended that the district court dismiss Stiltner’s

petition as untimely. Recognizing that the second prong of the test presented a “close question,”

however, the Magistrate Judge recommended that the district court issue a certificate of

appealability. R. 91 (R. & R. at 18, 26) (Page ID #1117, 1125).

       The parties filed objections to the Magistrate Judge’s report. The Warden objected only

to the Magistrate Judge’s recommendation that the district court issue a certificate of

appealability and only on the grounds that Stiltner received what the Warden called

“extraordinary legal assistance.” R. 93 (Respt. Objs. to R. & R. at 1‒2) (Page ID #1128‒29).

The Warden did not contest the Magistrate Judge’s finding that Stiltner is mentally incompetent.

Id. Stiltner objected to the Magistrate Judge’s determination that he did not diligently pursue his

rights. R. 94 (Petr. Objs. to R. & R. at 1) (Page ID #1131). Stiltner argued that the district

court’s inquiry is limited to whether the petitioner diligently pursued his rights to the extent he

could understand them, and that the existence of filings that Stiltner had no involvement with (or

even a basic understanding of) could not sever the causal link between Stiltner’s mental

incompetence and his failure to timely file a habeas petition. Id. at 1‒11 (Page ID #1131‒41).

       The district court adopted the Magistrate Judge’s recommendation, dismissing Stiltner’s

petition as untimely but granting a certificate of appealability. R. 95 (Dist. Ct. Order at 1) (Page

ID #1151). Stiltner timely appealed. R. 98 (Notice of Appeal) (Page ID #1158).


                                                11
No. 15-6363, Stiltner v. Hart


                                         II. ANALYSIS

A. Equitable Tolling of AEDPA’s Statute of Limitations

       AEDPA’s one-year limitations period is not a jurisdictional bar and is therefore subject to

equitable tolling where a habeas petitioner “shows (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely

filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted).

Although we have held that equitable tolling should be applied “sparingly,” Solomon v. United

States, 467 F.3d 928, 933 (6th Cir. 2006), we have also recognized the need for flexibility in

equitable procedures, Jones v. United States, 689 F.3d 621, 627 (6th Cir. 2012) (citing Holland,

560 U.S. at 650). “[F]lexibility . . . enables courts to meet new situations that demand equitable

intervention, and to accord all the relief necessary to correct particular injustices.” Id. (quoting

Holland, 560 U.S. at 650). Thus, although our application of equitable tolling is restrained, we

avoid rigid rules and consider equitable-tolling claims on a case-by-case basis. Id. (citing

Holland, 560 U.S. at 650).

       “[T]he party asserting statute of limitations as an affirmative defense has the burden of

demonstrating that the statute has run,” but “the petitioner bears the ultimate burden of

persuading the court that he or she is entitled to equitable tolling.” Griffin v. Rogers, 308 F.3d

647, 653 (6th Cir. 2002). “Where the determinative facts are undisputed, the decision whether to

apply equitable tolling is reviewed de novo.” Jones, 689 F.3d at 627 (citing Solomon, 467 F.3d

at 932).    The Warden does not contest any of the facts establishing Stiltner’s mental




                                                12
No. 15-6363, Stiltner v. Hart


incompetence,2 and Stiltner does not contest any of the facts establishing that he had some legal

assistance. The parties’ only dispute is whether, given those facts, Stiltner is entitled to equitable

tolling. As part of this dispute, of course, the parties disagree as to whether Stiltner’s mental

incompetence caused the delay. But in the context of equitable tolling, causation is not a fact—it

is a legal determination based on facts. See Bilbrey v. Douglas, 124 F. App’x 971, 973 (6th Cir.

2005) (reviewing petitioner’s equitable-tolling claim de novo where parties disagreed as to

whether the petitioner had “establish[ed] a causal connection between her mental condition and

her ability to file a timely petition” because, as the court explained, “[the] facts are undisputed

and the district court’s decision to grant or deny equitable tolling involves only a question of

law”). Because the facts are undisputed here, we review Stiltner’s equitable-tolling claim de

novo.

B. Equitable Tolling for Mental Incompetence

        In Ata v. Scutt, we recognized that a petitioner’s mental incompetence can constitute an

extraordinary circumstance under Holland. 662 F.3d 736, 742 (6th Cir. 2011); see also McSwain

v. Davis, 287 F. App’x 450, 456 (6th Cir. 2008). In so holding, we fashioned the following test:

“[t]o obtain equitable tolling of AEDPA’s statute of limitations on the basis of mental

incompetence, a petitioner must demonstrate that (1) he is mentally incompetent and (2) his



        2
         The Magistrate Judge noted as much in his Report and Recommendation. See R. 91 (R.
& R. at 16) (Page ID #1115) (“The essentially unchallenged exhibits and testimony in this case
indicate that Stiltner did not understand his need to timely file.”); id. at 17 (Page ID #1116) (“Dr.
Drogin testified that his preliminary tests indicated Stiltner ‘was an individual of substantially
limited intellectual capacity.’ The Court was not given any contrary medical records or
testimony.” (internal citation omitted)).

                                                 13
No. 15-6363, Stiltner v. Hart


mental incompetence caused his failure to comply with AEDPA’s statute of limitations.”

Holland, 662 F.3d at 742. We explained that “a blanket assertion of mental incompetence is

insufficient to toll the statute of limitations.” Id. “Rather, a causal link between the mental

condition and untimely filing is required.” Id. However, because Ata considered an equitable-

tolling claim in the context of an appeal from a denial of an evidentiary hearing, Ata stopped

short of engaging in a full analysis of the claim, instead remanding the case to the district court.

Id. at 745.

        In need of additional guidance, the Magistrate Judge looked to Bills v. Clark, 628 F.3d

1092 (9th Cir. 2010), which addresses the requirements that we articulated in Ata. Bills sets

forth a two-prong test for determining eligibility for equitable tolling due to mental

incompetence:

        (1) First, a petitioner must show his mental impairment was an “extraordinary
            circumstance” beyond his control, by demonstrating the impairment was so
            severe that either

              (a) petitioner was unable rationally or factually to personally
                  understand the need to timely file, or

              (b) petitioner’s mental state rendered him unable personally to
                  prepare a habeas petition and effectuate its filing.

        (2) Second, the petitioner must show diligence in pursuing the claims to the
            extent he could understand them, but that the mental impairment made it
            impossible to meet the filing deadline under the totality of the circumstances,
            including reasonably available access to assistance.

Id. at 1099‒1100 (emphasis in original) (internal citation omitted) (footnote omitted). Bills’s

first prong fleshes out Ata’s requirement that a petitioner be mentally incompetent by explaining

what kind of mental incompetence merits equitable tolling. Bills’s second prong fleshes out

                                                14
No. 15-6363, Stiltner v. Hart


Ata’s requirement that there be a “causal link” between the mental incompetence and the delay

by placing causation within the context of a totality-of-the-circumstances inquiry. The second

prong also incorporates Holland’s requirement that a petitioner demonstrate that he diligently

pursued his rights, while recognizing that a mentally incompetent petitioner can diligently pursue

his rights only to the extent that he understands them. As Bills explains, “the ‘extraordinary

circumstance’ of mental impairment can cause an untimely habeas petition at different stages in

the process of filing by preventing petitioner from understanding the need to file, effectuating a

filing on his own, or finding and utilizing assistance to file.” Id. at 1100. “Thus, a petitioner’s

mental impairment might justify equitable tolling if it interferes with the ability to understand the

need for assistance, the ability to secure it, or the ability to cooperate with or monitor assistance

the petitioner does secure. The petitioner therefore always remains accountable for diligence in

pursuing his or her rights.” Id. Accordingly, like the Magistrate Judge and the district court, we

apply both Ata and Bills to Stiltner’s claim.

       1. Whether Stiltner is Mentally Incompetent

       The Warden contends that Stiltner has not met the first prong of the test because Stiltner

has not shown that he is mentally incompetent. Appellee Br. at 48‒51. The Warden waived this

argument by not raising it below. See R. 93 (Respt. Objs. to R. & R. at 1‒2) (Page ID #1128‒

29). Parties who disagree with a Magistrate Judge’s recommendation must “file objections with

the district court or else waive [the] right to appeal.” Souter v. Jones, 395 F.3d 577, 585 (6th Cir.

2005) (quoting United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)). “[O]nly those

specific objections to the [Magistrate Judge’s] report made to the district court will be preserved


                                                 15
No. 15-6363, Stiltner v. Hart


for appellate review.” Id. at 585 (quoting Smith v. Detroit Fed’n of Teachers, Local 231,

829 F.2d 1370, 1373 (6th Cir. 1987)). The Warden objected only to the Magistrate Judge’s

recommendation that the district court issue a certificate of appealability and only on the basis

that Stiltner received what the Warden called “extraordinary legal assistance.” See R. 93 (Respt.

Objs. to R. & R. at 1‒2) (Page ID #1128‒29). The Warden did not object to the Magistrate

Judge’s finding that Stiltner is mentally incompetent. Id. Thus, the Warden’s argument is

waived.

       Even if we were to consider the Warden’s argument, it is meritless. The Warden objects

to Stiltner’s use of the term “mental retardation,” R. 17 (Am. Habeas Pet. at 15) (Page ID #350),

because, as the Warden argues, “[m]ental retardation . . . is not evidence of incompetency,”

Appellee Br. at 50. But the question is not what term Stiltner uses in his habeas petition; the

question is what Stiltner’s evidence shows. And Stiltner’s evidence shows that he is mentally

incompetent—that he is “unable rationally or factually to personally understand the need to

timely file” and “unable personally to prepare a habeas petition and effectuate its filing.” Bills,

628 F.3d at 1100.

       2. Whether Stiltner Diligently Pursued His Claims

       In addition to demonstrating mental incompetence, a petitioner must show that “his

mental incompetence caused his failure to comply with AEDPA’s statute of limitations.” Ata,

662 F.3d at 742. Under Holland, a petitioner must also show that he has been pursuing his rights

diligently. Holland, 560 U.S. at 649. Combining these two requirements, Bills’s second prong

provides that “[a] petitioner must show diligence in pursuing the claims to the extent he could


                                                16
No. 15-6363, Stiltner v. Hart


understand them, but that the mental impairment made it impossible to meet the filing deadline

under the totality of the circumstances, including reasonably available access to assistance.”

Bills, 628 F.3d at 1099‒1100.

       Bills’s second prong considers Ata’s causation requirement and Holland’s diligence

requirement together because they serve the same purpose in this context.            The causation

requirement ensures that “[the petitioner’s] mental incompetence caused his failure to comply

with AEDPA’s statute of limitations”—in short, that there is not another reason for the delay that

would render equitable tolling inappropriate. Ata, 662 F.3d at 742 (emphasis added). The

diligence requirement focuses on a specific reason that would render equitable tolling

inappropriate: negligence. Holland, 560 U.S. at 649, 653. And because both the causation

requirement and the diligence requirement are “highly fact-dependent,” Bills, 628 F.3d at 1097,

Bills considers them within the context of a totality-of-the-circumstances inquiry—an inquiry

that both acknowledges the importance of access to assistance and recognizes that a petitioner

can diligently pursue his claims only to the extent that he understands them, id. at 1099‒1100.

       The evidence in this case shows that Stiltner barely understood his claims, if he

understood them at all. Drogin testified that Stiltner’s IQ score on the WAIS was “within a

range that is typically associated with what [clinical psychologists previously] called ‘mental

retardation’ and currently refer to as ‘intellectual disability.’” R. 84 (Tr. of Evidentiary Hr’g at

15) (Page ID #813). The evidence demonstrates that this intellectual disability is severe. In

addition to being unable to read or write, Stiltner has an extremely poor memory, an attention

span of “seconds,” and significant difficulty organizing his thoughts and understanding even


                                                17
No. 15-6363, Stiltner v. Hart


simple logical relationships. Id. at 28, 34‒35, 71, 75‒76, 96, 100 (Page ID #826, 832‒33, 869,

873‒874, 894, 898). Stiltner is also severely limited in his ability to process language. In

discussing the ramifications of this limitation, Drogin testified:       “A person who doesn’t

understand what is being said to him will be at a significant disadvantage in attempting to obtain

assessments, in attempting to understand what other people are telling him in any variety of

business or social or legal or other context[s].” Id. at 26 (Page ID #824).

       Stiltner’s mind, according to Blair and Gaither, who have both spent a considerable

amount of time with Stiltner, is like that of a very young child. Id. at 82, 96 (Page ID #880,

894). Not surprisingly, Blair and Gaither testified that Stiltner never told them to file anything

on his behalf; rather, Blair and Gaither filed documents on their own accord. Indeed, the closest

Stiltner ever came to asking for assistance was when Stiltner approached Blair and said, “I was --

I get something done on mine.” Id. at 67 (Page ID #865). Other than that, Stiltner never asked

for legal help. He did not even ask basic questions about the work that Blair and Gaither were

doing for him. The extent of Stiltner’s involvement was listening to Blair read him legal

documents that he could not understand and accompanying Gaither to the prison mail room. Id.

at 70‒76, 81‒82, 90‒92 (Page ID #868‒74, 879‒880, 888‒89). In short, the diligence that

Stiltner could exercise was extremely limited.

       Our analysis, however, does not end here. The inquiry into diligence also considers a

petitioner’s “reasonably available access to assistance.” Bills, 628 F.3d at 1099‒1100. We

consider legal assistance because legal assistance—whether in the form of an attorney or a

“‘jailhouse lawyer’—an inmate who assists other prisoners with legal filings”—makes it easier


                                                 18
No. 15-6363, Stiltner v. Hart


for a petitioner to timely file a habeas petition. Id. at 1101. Accordingly, if a petitioner had

access to legal assistance but did not timely file a petition, we might conclude that the petitioner

was not diligent in pursuing his claims. Id. Access to legal assistance, therefore, can be an

important factor. Id. Indeed, a number of courts have found it to be the factor on which an

equitable-tolling claim turns. See, e.g., Brown v. McKee, 232 F. Supp. 2d 761, 768 (E.D. Mich.

2002) (stating that “[t]he exceptional circumstances that would justify equitable tolling on the

basis of mental incapacity are not present when the party who seeks the tolling has been able to

pursue his or her legal claims during the period of his or her alleged mental incapacity”); see also

McSwain, 287 F. App’x at 457 (noting that the record evidence indicated that the petitioner “was

able to pursue both direct and collateral challenges to her conviction in the state courts

notwithstanding her mental illness”); Price v. Lewis, 119 F. App’x 725, 726–27 (6th Cir. 2005)

(denying equitable tolling based on mental illness where the habeas petitioner had actively

pursued his claims during the limitations period).

       The legal assistance in this case is not insignificant. The record shows that Stiltner had

access to legal assistance as early as two years before the filing deadline. In 1995, Blair filed a

form requesting the factual contents of an investigation report. R. 84 (Tr. of Evidentiary Hr’g at

69‒70) (Page ID #867‒68); see also R. 43-8 (Req. for Factual Contents of Investigation Report)

(Page ID #533). In 1996, a paralegal with Kentucky’s Department of Public Advocacy sent a

letter to a circuit court clerk requesting legal records for post-conviction purposes. R. 10-3 (App.

Vol. I at 23) (Page ID #149). The record also contains two medical release forms, both of which

Stiltner signed within the limitations period—one on May 22, 1996 and one on March 26,


                                                19
No. 15-6363, Stiltner v. Hart


1997—that list a public defender as Stiltner’s attorney. R. 90-1 (Medical Release Forms) (Page

ID #1098‒99). The forms also refer to the same paralegal who sent the letter requesting legal

records as the public defender’s associate. Id.

       Stiltner had legal assistance after the limitations period as well. In 2004, Blair filed a

Rule 11.42 motion to vacate, set aside, or correct Stiltner’s sentence based on Stiltner’s mental

incompetence. R. 84 (Tr. of Evidentiary Hr’g at 68) (Page ID #866); see also R. 1-8 (Rule 11.42

Mot.) (Page ID #53). A year later, as a result of the Rule 11.42 motion, Kentucky appointed a

public defender to represent Stiltner. R. 10-3 (App. Vol. I at 38) (Page ID #164). In 2006, that

public defender asked Drogin to examine Stiltner. See R. 84 (Tr. of Evidentiary Hr’g at 11)

(Page ID #809). A year after that, in 2007, the public defender filed a supplemental pleading to

the Rule 11.42 motion, as well as a motion for equitable tolling and a motion for a court-ordered

evaluation of Stiltner’s mental incompetency. R. 10-4 (App. Vol. II at 1) (Page ID #170). When

the state court denied Blair’s motion to vacate, the public defender filed a notice of appeal. Id. at

18 (Page ID #187). A different public defender filed the actual appeal in 2008. Id. at 20 (Page

ID 189). In 2012, Stiltner’s fellow prisoner Gaither filed a post-conviction motion pursuant to

Kentucky Rule of Civil Procedure 60.02. See R. 84 (Tr. of Evidentiary Hr’g at 101) (Page ID

#899); see also R. 10-6 (App. Vol. IV at 8) (Page ID #254).

       The availability of legal assistance, however, “is only part of the overall assessment of

the totality of circumstances that goes into the equitable determination.” Bills, 628 F.3d at 1101.

And here, it is not a persuasive part because the reason that we care about the availability of legal

assistance—that legal assistance makes it easier for a petitioner to timely file a habeas petition—


                                                  20
No. 15-6363, Stiltner v. Hart


does not apply with the same force where the petitioner cannot direct the assistance in even the

most fundamental ways. Given that Stiltner barely understood his claims, if he understood them

at all, it is unfathomable that he would be able to conceive of the need to timely file a habeas

petition and then, given his extremely short attention span and poor memory, that he would be

able to monitor the legal assistance provided for him by a fellow prisoner or an attorney to make

sure that they met the relevant deadline. Stiltner’s testimony at the evidentiary hearing is

revealing:

               Q.     Mr. Stiltner, did a lot of people put a lot of things in front
                      of you and tell you to sign them?
               A.     Yeah. Yeah, they did.
               Q.     Did you know what you were signing all the time?
               A.     Not -- no, not all the time.
               Q.     Would you say most of the time you knew what you were
                      signing?
               A.     Well, I didn’t, no. I -- I couldn’t read, so I couldn’t have
                      understood it.
               Q.     So people might tell you something but you had to rely on
                      that person, whoever it was?
               A.     Yeah.
               Q.     Okay. Can you tell me what “dispute” means, Mr. Stiltner.
               A.     What?
               Q.     “Dispute,” what does that mean?
               A.     I don’t know.
               Q.     Can you tell me what “incompetent” means?
               A.     In common?
               Q.     Incompetent.
               A.     Incompetent. No.
               Q.     Can you tell me what it means to “serve” someone?
               A.     Serve. No.

R. 84 (Tr. of Evidentiary Hr’g at 185‒86) (Page ID #983‒94).             If Stiltner could barely

understand the need for legal assistance, let alone monitor that assistance, the assistance itself



                                               21
No. 15-6363, Stiltner v. Hart


cannot demonstrate that Stiltner could have timely filed a habeas petition. See, e.g., Jones v.

Cate, 590 F. App’x 701, 702 (9th Cir. 2015) (holding that the district court erred in finding a lack

of diligence based on the petitioner’s multiple state habeas petitions and the fact that the

petitioner sought assistance from other inmates to draft correspondence, complete paperwork,

and file prison grievances—as “the only inference which arises [from these facts] is that [the

petitioner] was incapable of asking for help in filing a federal habeas petition”); Jones v. Palmer,

No. 3:11-CV-00467-MMD, 2015 WL 56052, at **1‒2, 5 (D. Nev. Jan. 5, 2015) (finding that the

petitioner had exercised reasonable diligence in pursuing his claims to the extent that he was

capable where petitioner’s fellow prisoners made several state and federal filings on his behalf).

Indeed, the Warden acknowledged at oral argument that a petitioner is entitled to equitable

tolling if that petitioner’s mental incompetence is so severe that he cannot cooperate with or

monitor the fellow prisoners or the attorneys who are helping him. Of course, the Warden

maintained that Stiltner could cooperate with and monitor the assistance he had, but we disagree

given the evidence discussed above. Thus, we find that, given the totality of the circumstances,

Stiltner diligently pursued his claims to the extent that he could understand them. See Bills,

628 F.3d at 1100. Indeed, that is exactly what Stiltner was doing when he said to Blair, “I was --

I get something done on mine,” R. 84 (Tr. of Evidentiary Hr’g at 67) (Page ID #865), when he

listened to Blair read him legal documents, id. at 73 (Page ID #871), and when he accompanied

Gaither to the mail room, id. at 90‒91 (Page ID #888‒89).

       We emphasize what we do not hold.             We do not hold that a finding of mental

incompetence obviates the need to inquire into causation—or more specifically, into diligence.


                                                22
No. 15-6363, Stiltner v. Hart


As we observed in Ata, “a blanket assertion of mental incompetence is insufficient to toll the

statute of limitations”—we require a causal link between the mental incompetence and the

delayed filing. 662 F.3d at 742. Nor do we hold that, within our inquiry into diligence, the

availability of legal assistance is unimportant. Legal assistance is, “in many circumstances[,] . . .

highly relevant to the question of whether a petitioner’s mental condition made it impossible to

file a timely petition.”    Bills, 628 F.3d at 1101.      But it is not highly relevant in these

circumstances (and it is not dispositive in any circumstances). Id. What we do hold is that given

the specific facts of this case, in particular Stiltner’s severe mental incompetence—which left

him unable to monitor the assistance he had in even the most basic ways—the district court erred

in denying equitable tolling.

                                           III. CONCLUSION

       For the reasons stated above, we REVERSE the district court’s dismissal of Stiltner’s

habeas petition as untimely and REMAND for further proceedings.




                                                 23
No. 15-6363, Stiltner v. Hart


       McKEAGUE, Circuit Judge, dissenting. The majority purports to be crafting a narrow

opinion based on the severity of Roy Stiltner’s mental incapacity. It is careful to note that it is

“not hold[ing] that a finding of mental incompetence obviates the need to inquire into causation”

as required by Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). Maj. Op. 22–23. It does so

because a panel of this court does not have the power to overrule a prior, binding decision of this

court. Sykes v. Anderson, 625 F.3d 294, 319 (6th Cir. 2010). Yet, despite the majority’s

cautious language, overruling precedent is exactly what it does.

                                                 I

       In Ata, we held that “[t]o obtain equitable tolling of AEDPA’s statute of limitations on

the basis of mental incompetence, a petitioner must demonstrate that (1) he is mentally

incompetent and (2) his mental incompetence caused1 his failure to comply with AEDPA’s

statute of limitations.” 662 F.3d at 742. The majority maps onto this standard the test from the

Ninth Circuit:


       1
         The majority holds that “in the context of equitable tolling, causation is not a fact—it is
a legal determination based on facts.” Maj. Op. 13 (citing Bilbrey v.Douglas, 124 F. App’x 971,
973 (6th Cir. 2005)). I would only note that there is not yet a binding case in our Circuit
deciding whether causation is a question of law or fact in this context. Because questions of fact
are reviewed only for an abuse of discretion whereas questions of law are reviewed de novo, the
threshold issue of whether causation is a question of fact or law is often critical. Outside of
equitable tolling, we generally treat causation as a question of fact. See Warren v. Ohio Dept. of
Public Safety, 24 F. App’x 259, 267 (6th Cir. 2001); Hasler v. United States, 718 F.2d 202, 204
(6th Cir. 1983); Pierce v. United States, 718 F.2d 825, 829 (6th Cir. 1983); Chandler v. Edgar
W. Long, Inc., 623 F.2d 1139, 1142 (6th Cir. 1980). If, as in most other contexts, causation is a
question of fact, we would give deference to the district court’s determination that Stiltner’s
mental incompetence did not cause his untimely filing.


                                                24
No. 15-6363, Stiltner v. Hart


              (1) First, a petitioner must show his mental impairment was an
       “extraordinary circumstance” beyond his control, see Holland[ v. Florida,
       560 U.S. 631, 649 (2010)], by demonstrating the impairment was so severe that
       either
                      (a) petitioner was unable rationally or factually to personally understand
               the need to timely file, or
                      (b) petitioner’s mental state rendered him unable personally to prepare a
               habeas petition and effectuate its filing.
              (2) Second, the petitioner must show diligence in pursuing the claims to
       the extent he could understand them, but that the mental impairment made it
       impossible to meet the filing deadline under the totality of the circumstances,
       including reasonably available access to assistance. See id.
       To reiterate: the “extraordinary circumstance” of mental impairment can cause an
       untimely habeas petition at different stages in the process of filing by preventing
       petitioner from understanding the need to file, effectuating a filing on his own, or
       finding and utilizing assistance to file. The “totality of the circumstances” inquiry
       in the second prong considers whether the petitioner’s impairment was a but-for
       cause of any delay. Thus, a petitioner’s mental impairment might justify
       equitable tolling if it interferes with the ability to understand the need for
       assistance, the ability to secure it, or the ability to cooperate with or monitor
       assistance the petitioner does secure. The petitioner therefore always remains
       accountable for diligence in pursuing his or her rights.

Bills v. Clark, 628 F.3d 1092, 1099–1100 (9th Cir. 2010).

       Under the majority’s logic, however, the two requirements of Ata (and of Bills) would

instead be collapsed into one requirement: mental incompetency.           That is, any petitioner

suffering from mental incapacity would be permitted to circumvent the statute of limitations.

The majority asserts that this is untrue, and that it is only “the specific facts of this case, in

particular Stiltner’s severe mental incompetence—which left him unable to monitor the

assistance he had in even the most basic ways” that separate this case from other equitable tolling

cases involving mental incompetence. Maj. Op. 23. Do not be fooled. The majority has not and



                                                25
No. 15-6363, Stiltner v. Hart


cannot fashion any test or limiting principle to keep today’s holding from eliminating Ata’s

second requirement for equitable tolling.

       The majority stresses the importance of a prisoner’s ability to monitor his attorney. Maj.

Op. 21–22. It reasons that Stiltner’s mental incompetence is so severe that it satisfies both prong

one (mental incompetence) and prong two (causation) of the Ata-Bills test. But while prong one

focuses on a prisoner’s mental abilities, prong two focuses on whether his inabilities caused the

delay in filing. Yet under the majority’s test, those two issues will be one and the same.

A petitioner who “was unable rationally or factually to personally understand the need to timely

file” or whose “mental state rendered him unable personally to prepare a habeas petition and

effectuate its filing” will never be able to monitor his attorney to ensure that his habeas petition

is timely filed. 628 F.3d at 1100. Thus, under the same logic that the majority now uses, any

petitioner who is mentally incompetent will, by definition, have simultaneously met the

causation requirement of the Ata-Bills test—and so will be subject to no statute of limitations at

all.

       This is directly contrary to our precedent, which requires us to maintain Ata’s two-step

inquiry into whether a mentally incompetent prisoner has been diligent in pursuing his federal

habeas claims. Our caselaw makes clear that “a blanket assertion of mental incompetence is

insufficient to toll the statute of limitations. Rather, a causal link between the mental condition

and untimely filing is required.” Ata, 662 F.3d at 742. “We are not free to pick and choose the

portions of a prior published decision that we will follow and those that we will disregard.”

United States v. Mateen, 739 F.3d 300, 305 (6th Cir. 2014) (citation and quotation marks


                                                26
No. 15-6363, Stiltner v. Hart


omitted), rev’d on other grounds, United States v. Mateen, 764 F.3d 627 (6th Cir. 2014) (en

banc).

         In addition to being bound by our caselaw, we have a duty to enforce the law as Congress

has enacted it. See, e.g., King v. Burwell, 135 S. Ct. 2480, 2496 (2015) (“In a democracy, the

power to make the law rests with those chosen by the people. Our role is more confined—‘to

say what the law is.’ Marbury v. Madison, [5 U.S. 137, 177 (1803)]. That is easier in some

cases than in others. But in every case we must respect the role of the Legislature, and take care

not to undo what it has done.”). Congress passed AEDPA with a strict one-year statute of

limitations, 28 U.S.C. § 2244(d)(1), but “did not create a categorical exception to the statute of

limitations for mentally incompetent defendants, so the statute of limitations must apply in at

least certain situations for the mentally incompetent.”     R. 95, Order at 4, Page ID 1154.

Accordingly, “the doctrine of equitable tolling is used sparingly by federal courts.” Robertson v.

Simpson, 624 F.3d 781, 783 (6th Cir. 2010). We do not have the power to carve a blanket

exception into AEDPA that does not exist, yet that is exactly what the majority does. Under the

majority’s logic, the statute of limitations period for petitioners who meet the mental

incompetence prong of Ata would be tolled in perpetuity.

         In addition to contravening AEDPA’s text, the majority’s holding goes against AEDPA’s

entire purpose. “The 1-year limitation period of § 2244(d)(1) quite plainly serves the well-

recognized interest in the finality of state court judgments.” Duncan v. Walker, 533 U.S. 167,

179 (2001). Congress’s concern over late-filed petitions is particularly relevant here. Stiltner’s

habeas petition raises claims related to his competency to plead guilty. He pleaded guilty thirty


                                                27
No. 15-6363, Stiltner v. Hart


years ago. Evaluating his competency to plead guilty so long after his conviction will be an

extremely difficult task,2 and such difficulty reinforces the rationale behind AEDPA’s statute of

limitations period, which ran almost twenty years ago in 1997.

                                                 II

       Legal assistance and attorney representation are of particular relevance in determining if

a habeas petitioner’s mental incompetence caused his delay in filing his habeas petition. Bills,

628 F.3d at 1100. Our unpublished cases have stressed the importance of this inquiry in

determining whether a petitioner was diligent and so deserving of equitable tolling. In Price v.

Lewis, for example, we held that “[t]he exceptional circumstances that would justify equitable

tolling on the basis of mental incapacity are not present when the party who seeks the tolling has

been able to pursue his or her legal claims during the period of his or her alleged mental

incapacity.” 119 F. App’x 725, 726 (6th Cir. 2008) (citation and quotation marks omitted).

Accordingly, because “Price actively pursued his claims during the limitations period by seeking

and obtaining help completing legal paperwork,” he was not entitled to equitable tolling. Id.

Likewise, in Plummer v. Warren, we held that a pro se habeas petitioner’s physical disabilities

did not entitle her to equitable tolling of the statute of limitations period when the petitioner

conceded that she did not do her own legal work—and thus her physical disabilities could not

have impacted the timeliness of the filing. 463 F. App’x 501, 505–06 (6th Cir. 2012) (noting

also that a review of her federal habeas petition and her prior state petition for collateral review

       2
        Stiltner had a mental evaluation in 1966, but did not have a second one until 2006.
R. 91, Magistrate R&R at 18, Page ID 1117.


                                                28
No. 15-6363, Stiltner v. Hart


demonstrated that she raised the same issues in both such that additional legal work was

unnecessary).

       Once we note that a prisoner was represented by an attorney during his post-conviction

efforts, we must look to the circumstances of that legal assistance. In nearly all cases, legal

assistance will break the causal connection between mental incompetence and failure to timely

file a habeas petition. See Price, 119 F. App’x at 726.

                So it is here. As the majority notes, the legal assistance that Stiltner received was

significant. Maj. Op. 19–20. Most strikingly, this included the assistance of Dennis Burke from

the Kentucky Department of Public Advocacy, a licensed, state-appointed attorney who

represented Stiltner in a state post-conviction matter. R. 91, Magistrate R&R at 23, Page ID

1122. At Burke’s request, Dr. Eric Drogin evaluated Stiltner in 2006 to determine whether

Stiltner was competent to stand trial when he pleaded guilty in 1986. Id. at 5, Page ID 1104.

Burke then supplemented Stiltner’s state post-conviction motion with a motion for equitable

tolling on the basis of Stiltner’s mental incapacities and a motion for a court-ordered mental

competency evaluation. Id. at 2, Page ID 1101; R. 10-4, Motion at 1, Page ID 170. Thus, from

2005 to 2007, Stiltner was represented by a licensed attorney, this attorney knew that Stiltner’s

mental competency issues could form a basis for pursuing post-conviction relief, and this

attorney actually provided Stiltner with sufficient legal assistance to enable him to make state

court filings that sought post-conviction relief on the basis of Stiltner’s mental incompetency.




                                                 29
No. 15-6363, Stiltner v. Hart


Given this and other legal assistance, Stiltner has not carried his burden of showing that his

mental incapacity caused the seventeen-year delay3 in filing his habeas petition.

       And Burke was not the only one to provide Stiltner with legal assistance between the

enactment of AEDPA in 1996 and Stiltner’s habeas petition. During the statute of limitations

period from 1996 to 1997, attorney Timothy Riddell from the Kentucky Department of Public

Advocacy represented Stiltner. R. 91, Magistrate R&R at 19, Page ID 1118 (noting the record

contains “two medical release forms, both signed by Stiltner during the limitations period (dated

May 22, 1996 and March 26, 1997), that name Timothy Riddell as ‘my attorney’ along with Tina

Scott”).   Paralegal Tina Scott of the Kentucky Department of Public Advocacy requested

Stiltner’s legal records for “post conviction relief” purposes from the state trial court on February

19, 1996. Id. at 19, Page ID 1118.

       In December 2004, inmate David Blair helped Stiltner file a motion under Rule 11.42 of

the Kentucky Rules of Criminal Procedure, raising various claims regarding his competency at

the time of his arrest and conviction. Id. at 2, Page ID 1101. It was as a result of this filing that

the state appointed Burke to represent Stiltner, as discussed above. Id. at 23, Page ID 1122;

see also id. at 2, Page ID 1101 (noting that Burke filed a supplemental pleading to Stiltner’s Rule


       3
         Stiltner pleaded guilty to murder in 1986 and was sentenced to life in prison. R. 91,
Magistrate R&R at 1, Page ID 1100. Because Stiltner’s conviction became final prior to
AEDPA’s enactment in 1996, the statute of limitations period expired on April 24, 1997. Stiltner
filed his first federal habeas petition in April 2013, but it was dismissed without prejudice for
failure to exhaust. He filed the current habeas petition on April 15, 2014. R. 91, Magistrate
R&R at 3, Page ID 1102. Thus, absent tolling, this petition would be untimely by nearly
seventeen years.


                                                 30
No. 15-6363, Stiltner v. Hart


11.42 motion in 2007, including a motion for equitable tolling). When the state court denied

Stiltner’s Rule 11.42 motion, Burke filed a notice of appeal 4 and licensed attorney Meggan

Smith, also of the Kentucky Department of Public Advocacy, filed Stiltner’s appeal. R. 10-4,

Appeal at 18, 20, Page ID 187, 189; see R. 91, Magistrate R&R at 2, Page ID 1101 (noting that

the Kentucky Court of Appeals affirmed the denied of Stiltner’s Rule 11.42 motion).

       In 2010, inmate Tim Fancher, Stiltner’s cellmate, worked on Stiltner’s case. Id. at 8,

Page ID 1107. Fancher enlisted the help of fellow inmate Scot Gaither to assist with the legal

research. In 2012, Gaither took over assisting Stiltner in filing a motion to vacate his sentence in

state court pursuant to Kentucky Rule of Civil Procedure 60.02. The state court denied the

motion in 2012. Gaither assisted Stiltner in appealing, but the state appellate court affirmed the

denial in 2014. Id. at 2, 8, Page ID 1101, 1107.

       Thus, the record shows that, during the statute of limitations period and afterwards,

Stiltner had obtained legal assistance that enabled him to make court filings. The record also

shows that his jailhouse lawyers and his state-appointed attorneys knew of Stiltner’s mental

health issues. But, despite significant legal assistance—from three licensed attorneys (Riddell,

Burke, Smith) and three inmates (Blair, Fancher, Gaither)—Stiltner did not file a federal habeas

petition until 2013. The district court dismissed this petition without prejudice as premature


       4
         The magistrate judge states that “[o]n October 4, 2007, Stiltner, through his jailhouse
lawyer, filed a notice of appeal.” R. 91, Magistrate R&R at 2, Page ID 1101 (citing R. 10-4,
Notice at 18, Page ID 187). A review of the record citation provided, however, indicates that
this is clearly erroneous—the notice of appeal was filed by attorney Dennis Burke on October
10, 2007 (because an attorney does not receive the benefit of the prisoner mailbox rule).


                                                31
No. 15-6363, Stiltner v. Hart


because Stiltner failed to satisfy the exhaustion requirement. Id. at 3, Page ID 1102. He then

filed the current federal habeas petition in 2014. Id. (reasoning that this petition was filed “most

likely as a result of learning that his pending state-court matter [his Rule 60.062 motion] was

finally resolved on February 28, 2014”).

       Importantly, it is Stiltner’s burden to show that he was entitled to equitable tolling, yet he

did not have any of his licensed attorneys (Riddell, Burke, or Smith) testify. Thus, we are left to

wonder why his attorneys did not file a habeas petition.          Because he was represented by

attorneys and received assistance from fellow inmates, however, we cannot conclude that Stiltner

delayed filing his habeas petition because of his incompetence. We cannot know if Stiltner’s

failure to timely file was a strategic choice by his attorneys, if his attorneys did not believe that

his claims had merit, if they considered their representation of Stiltner to be limited to his state

proceedings, if they were unable to work with Stiltner, if they abandoned Stiltner, or if any other

of a myriad of reasons kept them from filing a federal habeas petition. We have no reason to

believe that either the state-appointed attorneys or the jailhouse attorneys were not “competent.”

See Bays v. Warden, Ohio State Penitentiary, No. 3:08-CV-076, 2014 WL 29564, at *7 (S.D.

Ohio Jan. 3, 2014) (“How could the mental incompetence of a litigant who has a competent

attorney possibly excuse failure to meet a filing deadline?”); R. 91, Magistrate R&R at 21, Page

ID 1120 (“Because Stiltner had competent people trying to help him during the limitations

period, he cannot clear the bar for equitable tolling.” (emphasis added)).

       And yet, with no testimony from any of the licensed attorneys involved in Stiltner’s post-

conviction efforts, the majority concludes that the reason that Stiltner did not timely file a federal


                                                 32
No. 15-6363, Stiltner v. Hart


habeas petition is that he was unable to monitor his attorneys. But, we have no reason to believe

that his licensed attorneys would have filed a federal habeas petition if Stiltner had been able to

monitor them. The majority focuses entirely on Stiltner’s incompetence without connecting it to

his delay. In the majority’s view, Stiltner could not monitor his attorney, ergo causation. But

again, this conflates the two prongs of Ata and Bills, because any petitioner who demonstrates

mental incompetence—i.e., that he “was unable rationally or factually to personally understand

the need to timely file” or was “unable personally to prepare a habeas petition and effectuate its

filing,” Bills, 628 F.3d at 1100—would be unable to monitor his attorney and so would have

demonstrated causation. Under the majority’s reasoning, a petitioner need not demonstrate

causation at all, so long as he demonstrates mental incompetence. This test that contradicts the

two-prong test established by Ata and would carve out a significant exception to AEDPA’s strict

one-year statute of limitations.

                                                III

       Ata established a two-part test: (1) incompetence and (2) causation.          The majority

pretends that it is not overruling this test, but its reasoning cannot be reconciled with Ata.

Because the majority’s holding is inconsistent with our binding caselaw, Ata, 662 F.3d at 742,

and is inconsistent with the clear directive of Congress, 28 U.S.C. § 2244(d)(1), I respectfully

dissent.




                                                33
