FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 17, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ANDREW HENDRICKS,
Petitioner - Appellant,
No. 07-6274
v. (W.D. Oklahoma)
(D.C. No. CV-07-366-F)
BRUCE HOWARD, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Petitioner, Andrew Hendricks, an Oklahoma state prisoner proceeding pro
se and in forma pauperis, seeks a certificate of appealability (“COA”) so he can
appeal the district court’s dismissal of the habeas corpus petition he filed pursuant
to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be
taken from a final order disposing of a § 2254 petition unless the petitioner first
obtains a COA). On August 26, 2003, Hendricks pleaded guilty to manufacturing
a controlled dangerous substance, possession of a controlled dangerous substance,
maintaining a dwelling for controlled dangerous substances, and possession of
drug paraphernalia. Because he did not withdraw his guilty plea or initiate a
direct appeal, Hendricks’s convictions became final on September 5, 2003. See
Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001).
Hendricks filed the instant § 2254 petition on March 28, 2008. In the
petition he raised claims that (1) his Fourth Amendment rights were violated by
an illegal search and seizure, (2) his trial counsel rendered ineffective assistance,
(3) he was not given Miranda warnings, (4) he was denied his right to due
process, (5) he was mentally incapacitated during his criminal proceedings, and
(6) actions taken by the state trial judge deprived him of a fair trial. Hendricks
acknowledged the untimeliness of his petition under the AEDPA’s one-year
statute of limitations but argued he was entitled to equitable tolling because of his
long history of mental illness. See 28 U.S.C. § 2244(d)(1); Gibson v. Klinger,
232 F.3d 799, 808 (10th Cir. 2000).
The § 2254 petition was referred to a magistrate judge who ordered
Hendricks to show cause as to why the petition should not be dismissed as
untimely. Hendricks was specifically ordered to explain how his alleged mental
illness affected his ability to file a timely petition. In response to the show cause
order, Hendricks asserted he suffers from bipolar disorder, manic depression, and
a serious heart condition; he is not able to take lithium because it “reacts fatally”
with an unnamed medication he takes for a heart condition; he has been
determined to be ninety percent disabled by the Social Security Administration;
and he has attempted suicide six times. In his reply, Respondent argued
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Hendricks’s bald allegations of mental illness were insufficient to warrant
equitable tolling. See Reupert v. Workman, 45 F. App’x 852, 854 (10th Cir.
2002) (“Equitable tolling of a limitations period based on mental incapacity is
warranted only in ‘exceptional circumstances’ that may include an adjudication of
incompetence, institutionalization for mental incapacity, or evidence that the
individual is not ‘capable of pursuing his own claim’ because of mental
incapacity.”).
In a thorough and well-reasoned Report and Recommendation, the
magistrate judge recommended dismissing Hendricks’s habeas petition as
untimely. The magistrate judge noted that Hendrick has not been adjudicated
incompetent, he did not claim to have been institutionalized for mental incapacity,
and he was able to pursue state court post-conviction relief shortly after the
AEDPA limitations period ended. Additionally, the record contradicted
Hendricks’s allegations that he was not taking lithium, and many of Hendricks’s
other allegations regarding his mental condition were conclusory. After
reviewing the magistrate judge’s recommendation and considering Hendricks’s
objections, the district court adopted the recommended ruling and dismissed
Hendricks’s § 2254 petition.
To be entitled to a COA, Hendricks must show “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district
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court dismisses a habeas petition on procedural grounds, a petitioner is entitled to
a COA only if he shows both that reasonable jurists would find it debatable
whether he had stated a valid constitutional claim and debatable whether the
district court’s procedural ruling was correct). This court reviews the district
court’s decision on equitable tolling of the limitations period for abuse of
discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).
Our review of the record demonstrates the district court’s dismissal of
Hendricks’s § 2254 petition as untimely is not deserving of further proceedings or
subject to a different resolution on appeal. Accordingly, this court denies
Hendricks’s request for a COA and dismisses this appeal.
Entered for the Court
ELISABETH A. SHUMAKER, CLERK
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