Perry v. Brown, 021220 FED7, 19-1683

Docket Nº:19-1683
Opinion Judge:EASTERBROOK, CIRCUIT JUDGE
Party Name:DeWayne Perry, Petitioner-Appellant, v. Richard Brown, Warden, Wabash Valley Correctional Facility, Respondent-Appellee.
Attorney:Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:18-cv-00271-WTL-DLP - William T. Lawrence, Judge.
Judge Panel:Before BAUER, EASTERBROOK, and BRENNAN, Circuit Judges.
Case Date:February 12, 2020
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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DeWayne Perry, Petitioner-Appellant,

v.

Richard Brown, Warden, Wabash Valley Correctional Facility, Respondent-Appellee.

No. 19-1683

United States Court of Appeals, Seventh Circuit

February 12, 2020

Argued January 29, 2020

Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:18-cv-00271-WTL-DLP - William T. Lawrence, Judge.

Before BAUER, EASTERBROOK, and BRENNAN, Circuit Judges.

EASTERBROOK, CIRCUIT JUDGE

DeWayne Perry, serving a long sentence for murder, suffers from aphasia, which impairs his ability to speak, write, and understand words. A stroke in 2009 caused Perry's aphasia, a condition that ranges from moderate limitations to complete disability. How limiting Perry's aphasia is today-or was in 2016 and 2017- is a central but unresolved issue in this litigation.

Perry pursued both direct and collateral review in Indiana's courts. A lawyer was appointed to represent him on the collateral attack, but as far as we can see the lawyer did nothing for him and eventually bailed out, leaving Perry unrepresented. Assisted in this appeal by volunteers from an esteemed law firm, Perry tells us that, after his former lawyer quit and the state judge denied his request for more time, he tried to dismiss his collateral attack without prejudice so that he could obtain assistance and mount a better challenge. Five months after dismissing the state proceeding, he refiled it, adding new legal theories. But the state judge dismissed the renewed application, ruling that the original dismissal had been with prejudice. Perry then filed in federal court a petition under 28 U.S.C. §2254, only to have it summarily dismissed.

Time during which a properly filed state collateral attack is pending is excluded from the one year available to file in federal court. See 28 U.S.C. §2244(d)(2). But Perry's second state proceeding was not properly filed, the federal judge determined, because a second or successive collateral attack in Indiana requires judicial permission that Perry did not seek or obtain. With the time during which Perry pursued his second application in state court counted against the year...

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