Reupert v. Workman , 45 F. App'x 852 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 3 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLARD LESLIE REUPERT,
Petitioner - Appellant, No. 01-6440
vs. (D.C. No. 01-CV-533-L)
(W.D. Okla.)
RANDY WORKMAN,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Petitioner-Appellant Willard L. Reupert, a state inmate appearing with
counsel, seeks a certificate of appealability (“COA”) allowing him to appeal the
denial of his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C.
§ 2254. Upon recommendation of the magistrate judge, the district court
dismissed the action as untimely under the one-year limitation period contained in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
28 U.S.C. § 2244(d)(1). Mr. Reupert contends that the limitation period should
be equitably tolled because he could not diligently pursue his claim due to his
mental incompetence. We deny Mr. Reupert’s motion for a COA, and dismiss the
appeal.
Mr. Reupert was convicted of four molestation related counts in October
1996 and sentenced to consecutive prison terms of 30, 25, 25 and 20 years. The
Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the convictions in
October 1997. Reupert v. State, 947 P.2d 198 (Okla. Ct. Crim. App. 1997). In
March 1999, Mr. Reupert filed an application for post-conviction relief, alleging
for the first time that he was mentally incompetent at the time of trial. The trial
court denied post-conviction relief, and the OCCA affirmed in February 2000. In
April 2001, Mr. Reupert filed a petition for habeas corpus relief, which was
denied by the district court.
A COA requires that an applicant make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). 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. Slack v. McDaniel, 529 U.S. 473,
484 (2000). If petitioner cannot make a threshold showing on the procedural
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issue, we need not address the constitutional issues. Id.The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
prescribes a one-year statute of limitations on petitions for habeas corpus relief,
marked from the date a conviction becomes final. 28 U.S.C. § 2244(d)(1). Mr.
Reupert’s conviction became final on January 19, 1998, when the 90-day period
time limit to seek certiorari review in the United States Supreme Court expired.
Rule 13.1, Rules of the Supreme Court. He therefore had until January 19, 1999,
to file a habeas petition within the time limits of 28 U.S.C. § 2244(d)(1). Mr.
Reupert’s petition, filed in April 2001, was untimely.
The AEDPA one-year limitation period is tolled during the time when a
“properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending.” 28 U.S.C.
§ 2244(d)(2). Mr. Reupert’s state post-conviction actions cannot toll the
limitation period here, however, because those actions came after the one-year
period expired. Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001), cert.
denied, 122 S. Ct. 1789 (2002).
Mr. Reupert argues that the magistrate judge and the district court
incorrectly focused on whether he was capable of pursuing his claims, rather than
whether a constitutional violation has resulted in the conviction of one who is
actually incompetent. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
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We agree that equitable tolling may be appropriate where there is adequate proof
of incompetence. Id. But as the district court and the magistrate judge observed,
the state trial court’s findings rejecting the competency claim in denying post-
conviction relief may not be lightly disregarded. 28 U.S.C. § 2254(e)(1); Report
and Recommendation (CIV 01-533-L) at 4, 8; Aplt. Br., Ex. A. at 2. See also
Fisher, 262 F.3d at 1145.
Given that, the next question is whether Mr. Reupert was capable of
pursuing a timely federal habeas claim. Miller, 141 F.3d at 978 (individual
circumstances must be considered but an inmate is required to diligently pursue
claims). 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. Biester v. Midwest Health Serv., Inc., 77 F.3d 1264, 1268 (10th Cir.
1996). The first two circumstances do not apply here, and the record indicates
that Mr. Reupert was represented and pursuing legal remedies during the pertinent
time period. Aplt. App. 14. Courts have been extremely reluctant to apply
equitable tolling in such circumstances. Kreutzer v. Bowersox, 231 F.3d 460, 463
(8th Cir. 2000), cert. denied, 122 S. Ct. 145 (2001). See also Lopez v. Citibank,
N.A., 808 F.2d 905, 906 (1st Cir. 1987) (assuming mental illness may toll in an
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employment discrimination case, “it cannot do so where a plaintiff has presented
no strong reason why, despite the assistance of counsel, he was unable to bring
suit).
We DENY the motion for a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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