Earls v. Booher , 35 F. App'x 845 ( 2002 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAY 28 2002
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    DAVID HAROLD EUGENE EARLS,
    Petitioner - Appellant,
    No. 02-7017
    v.
    (D.C. No. 01-CV-255-S)
    (E.D. Oklahoma)
    GLYNN BOOHER, Warden,
    Respondent - Appellee.
    ORDER AND JUDGMENT *
    Before TACHA, Chief Judge, EBEL and LUCERO, Circuit Judges.
    In his pro se habeas appeal, Appellant challenges the district court’s denial
    of his § 2254 petition as untimely under AEDPA. Exercising our jurisdiction
    pursuant to 28 U.S.C. § 1291, we deny Appellant’s motion for a Certificate of
    Appealability (COA) and dismiss this appeal.
    *
    After examining appellant’s brief and the 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) and 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    Order and Judgment is not binding precedent, except under the doctrines of law of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.
    In February 1996, Appellant pled guilty to assault and battery with a
    dangerous weapon, after former conviction of two or more felonies. He was
    sentenced to twenty years incarceration and did not file a motion to withdraw the
    plea or file a direct appeal. He did not seek post-conviction relief until December
    30, 1998, and both of his state post-conviction actions and appeals were
    unsuccessful. The district court denied Appellant’s request for a COA, finding
    that Appellant’s habeas petition, filed on May 7, 2001, was barred by AEDPA’s
    statute of limitations by more than four years, as the AEDPA deadline required
    that a habeas petition be filed by April 23, 1997. On appeal, Appellant urges this
    court to find that the limitations period for filing his habeas petition should be
    equitably tolled, arguing that his competency was evaluated during the state
    proceedings using the wrong standard.
    We, like the district court, find Appellant’s equitable tolling argument
    unavailing, and we affirm substantially for the reasons stated by the district court.
    The Supreme Court opinion that Appellant claims changed the standard used
    when evaluating competency, Cooper v. Oklahoma, 
    517 U.S. 348
    (1996), was
    decided on April 16, 1996, over a year before Appellant’s deadline for filing a
    habeas petition expired. Further, this court has held that AEDPA’s one-year
    statute of limitations is subject to equitable tolling “only in rare and exceptional
    circumstances.” Gibson v. Klinger, 
    232 F.3d 799
    , 808 (10th Cir. 2000) (internal
    -2-
    quotations and citations omitted). Appellant does not present any evidence that
    he was incompetent under the Cooper standard, instead asserting that his
    allegations of incompetency should toll the limitations period. However, “mere
    allegations” of incompetency when entering a guilty plea do not present
    extraordinary circumstances warranting equitable tolling. Fisher v. Gibson, 
    262 F.3d 1135
    , 1145 (10th Cir. 2001).
    Therefore, we DENY Appellant’s request for a COA and DISMISS this
    appeal. We further deny Appellant’s motion to proceed in forma pauperis.
    ENTERED FOR THE COURT
    David M. Ebel
    Circuit Judge
    -3-
    

Document Info

Docket Number: 02-7017

Citation Numbers: 35 F. App'x 845

Judges: Ebel, Lucero, Tacha

Filed Date: 5/28/2002

Precedential Status: Non-Precedential

Modified Date: 8/3/2023