F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 12 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CURTIS D. WORLEY,
Petitioner-Appellant,
v. No. 99-2103
(D.C. No. CIV-97-1470-JP)
RON LYTLE, Warden, Southern New (D. N.M.)
Mexico Correctional Facility and
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Curtis D. Worley appeals the district court’s denial of his petition
for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, as untimely.
Because petitioner has not made a substantial showing of the denial of a
constitutional right, we deny his application for a certificate of appealability and
dismiss the appeal.
Petitioner is currently serving state sentences for felony murder and
criminal sexual penetration. He was convicted in November 1982, and his
convictions were affirmed on direct appeal in January 1984. In March 1984,
petitioner filed for modification of his sentence, which was denied in August
1984. On April 16, 1997, petitioner filed a state habeas petition, which was
denied the same day. Petitioner sought certiorari review by the New Mexico
Supreme Court, which was denied on May 20, 1997.
On November 17, 1997, petitioner filed this federal habeas action. The
magistrate judge to whom the matter was referred recommended that the petition
be denied as untimely. In his objections to the recommended disposition,
petitioner argued that the limitations period should be equitably tolled because his
mental condition prevented him from meeting the filing deadline. After an
evidentiary hearing, the district court denied petitioner’s request for equitable
tolling, finding the evidence did not establish an inability to meet the time limits.
As a prerequisite to judicial review, petitioner must obtain a certificate of
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appealability by making a substantial showing of the denial of a constitutional
right. See 28 U.S.C. § 2253(c). Where, as here, the district court’s denial of
habeas relief is based on a procedural ground, petitioner must show that jurists of
reason would find it debatable (1) whether the district court was correct in its
procedural ruling, and (2) whether the petition stated a valid claim of the denial
of a constitutional right. See Slack v. McDaniel , 120 S. Ct. 1595, 1604 (2000).
If petitioner cannot make a threshold showing on the procedural issue, we need
not address the constitutional issues. See id.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA) took effect, significantly amending the habeas corpus statutes.
One such amendment imposed a one-year limitation on a state prisoner’s right to
bring a federal habeas action, running from the date the prisoner’s conviction
became final. See 28 U.S.C. § 2244(d)(1)(A). To avoid retroactively imposing
this limitation on state prisoners whose convictions became final before AEDPA’s
effective date, we recognized a one-year grace period within which such prisoners
could file their federal habeas petitions. See Hoggro v. Boone, 150 F.3d 1223,
1225 (10th Cir. 1998). This one-year grace period is subject to the § 2244(d)(2)
tolling rule during the pendency of a properly filed post-conviction proceeding.
See id. at 1226 & n.4. The limitations period may also be equitably tolled when
extraordinary circumstances beyond a prisoner’s control make it impossible to file
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a petition on time. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir.), cert.
denied , 525 U.S. 891 (1998) .
Under these rules, petitioner had until April 24, 1997, to file his federal
habeas petition, unless he had a properly filed state post-conviction proceeding
pending which would toll the time limit. On April 16, 1997, petitioner filed an
application for post-conviction relief in the state district court. This served to toll
the limitations period eight days before it was to expire. The limitations period
remained tolled until the New Mexico Supreme Court denied certiorari review on
May 20, 1997. Petitioner then had eight days in which to file his habeas petition
with the federal district court. Petitioner did not file his habeas petition until
almost six months later, on November 17, 1997. Therefore, the petition was
untimely.
Petitioner argues the limitations period should have been equitably tolled
due to his mental condition. Our decision in Biester v. Midwest Health Services,
Inc. , 77 F.3d 1264, 1268 & n.2 (10th Cir. 1996), describes the various standards
that have been applied in determining whether to equitably toll a statute of
limitations based on a claim of mental incapacity. We noted that if we were to
recognize such a rule, tolling would be allowed only under “exceptional
circumstances,” such as an adjudication of incompetency, institutionalization
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based on the alleged mental incapacity, or incapacitation to the degree that the
litigant is unable to pursue his or her suit. Id.
Here, petitioner was neither adjudicated incompetent nor institutionalized
for his mental impairment during the time period at issue. Instead, the evidence
shows that petitioner handled, with assistance, other legal matters which required
action during the statute of limitations period. It is undisputed that he knew of
the AEDPA time limits, although he may not have fully understood them. See R.
II, Trans. at 60. We have held a prisoner’s ignorance of the AEDPA time limits
does not present a circumstance meriting equitable tolling. See Miller , 141 F.3d
at 978. Moreover, petitioner’s lack of diligence in pursuing his claims during the
thirteen years preceding his habeas petition undermines his request for equitable
tolling. See id. After closely reviewing the entire record, we conclude that the
district court’s denial of equitable tolling is not reasonably debatable among
jurists of reason.
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Petitioner’s application for a certificate of appealability is DENIED, and
the appeal is DISMISSED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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