F I L E D
United States Court of Appeals
Tenth Circuit
September 8, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
LA W RENCE R. GRO SS,
Petitioner - A ppellant,
v.
STATE OF KAN SAS; RO GER No. 06-3079
W ERHOLTZ, Secretary of (D.C. No. 05-CV-3425-SAC)
Corrections; DA VID M cKU NE, (D . Kan.)
W arden, Lansing Correctional
Facility; and A TTO RN EY G ENERAL
OF KANSAS,
Respondents - Appellees.
OR DER DENYING A CERTIFICATE
OF APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Lawrence Gross, a state prisoner, seeks a certificate of appealability
(“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas
petition. For substantially the same reasons set forth by the district court, we
D EN Y a COA and DISM ISS.
Gross pled guilty to first degree murder on M ay 21, 1973. He was
convicted and sentenced to life in prison. W hile in prison, Gross learned that he
suffered from W ilson’s disease, a disorder affecting the body’s ability to
metabolize copper. On September 3, 2002, Gross filed a motion to withdraw his
guilty plea in K ansas district court, alleging that he w as incompetent to enter a
plea because of his illness. After his motion was denied, Gross filed a number of
state appeals, culminating in the Kansas Supreme Court’s denial of further review
on January 27, 2005. Gross filed a habeas petition pursuant to 28 U.S.C. § 2254
in federal district court on November 2, 2005. Finding the petition time-barred,
the district court denied his petition and his subsequent request for a COA.
Having failed to obtain a COA from that court, Gross now requests a COA from
this court. 1
AEDPA imposes a one-year statute of limitations on habeas petitions filed
by state prisoners. 28 U.S.C. § 2244(d). Because this law went into effect on
April 24, 1996, after Gross’ conviction became final, he had until April 24, 1997
to file a habeas petition. See United States v. Hurst, 322 F.3d 1256, 1260 (10th
1
Gross’ petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires G ross to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Gross a COA ,
he may not appeal the district court’s decision absent a grant of COA by this
court.
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Cir. 2003). Section 2244(d)’s one-year limitation period is tolled while a prisoner
pursues state post-conviction relief or other collateral review. 28 U.S.C.
§ 2244(d)(2). However, Gross did not file his motion to withdraw his guilty plea
until September 3, 2002 – more than five years after the statute of limitations had
run.
Gross contends that a substantive mental competency claim cannot be
procedurally barred, relying on Rogers v. Gibson, 173 F.3d at 1289. In R ogers
we held that a substantive mental competency claim may not be barred by
procedural default in state court. Id. However, Gross did not default in state
court – he simply failed to file a timely habeas petition – making Rogers
irrelevant to the present analysis.
Nor would equitable tolling be appropriate in this case. Equitable tolling
“is only available when an inmate diligently pursues his claims and demonstrates
that the failure to timely file was caused by extraordinary circumstances beyond
his control.” M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Gross has
not shown any extraordinary circumstances beyond his control that prevented him
from filing a timely petition. The record indicates that his disease was being
successfully treated long before the statute of limitations began to run.
For the foregoing reasons, Gross’ request for a COA is DENIED and his
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appeal is DISM ISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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