                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 4, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 LISA RAWLINS,

                 Petitioner-Appellant,                   No. 09-6162
          v.                                            (W.D. of Okla.)
 MILLICENT NEWTON-EMBRY,                        (D.C. No. 5:09-CV-00269-HE)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Lisa Rawlins was convicted by an Oklahoma jury of first degree murder in

the death of her two-year-old daughter. O KLA . S TAT . tit. 21, § 701.7(C). She is

currently serving a life sentence without the possibility of parole. Proceeding pro

se, 1 Rawlins seeks a certificate of appealability (COA) to challenge the district


      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         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.
      1
         Because Rawlins proceeds pro se, we construe her pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Brown v. Perrill,
21 F.3d 1008, 1009 (10th Cir. 1994).
court’s dismissal of her federal habeas corpus petition as time-barred. Rawlins

argues that the court should have equitably tolled the limitations period due to her

illiteracy and a nervous breakdown.

      After carefully reviewing the record, we conclude Rawlins is not entitled to

equitable tolling. Exercising jurisdiction under 28 U.S.C. § 2253, we therefore

DENY her COA request, DISMISS her appeal, and DENY her request to proceed

in forma pauperis.

                                  I. Background

      Rawlins was convicted of first degree murder in 1993. She appealed to the

Oklahoma Court of Criminal Appeals, and on November 30, 1994, the OCCA

affirmed her conviction. The conviction became final on February 28, 1995,

when the statutory period during which she could have applied for certiorari

review expired. In her opening brief in this court, Rawlins states that in 1996 she

was raped by a fellow inmate, was “harrase[d] and taunted” by fellow inmates,

and suffered a nervous breakdown. She also states that she was illiterate at the

time of her conviction.

      Rawlins filed for state post-conviction relief on October 29, 2008. The trial

court denied her claim, and the OCCA affirmed. She then filed for federal habeas

relief under 28 U.S.C. § 2254 on March 3, 2009. The district court denied her

federal habeas claim, and she requested a COA from this court.




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                                  II. Discussion

      A § 2254 petitioner must obtain a COA before appealing from a final order.

28 U.S.C. § 2253(c)(1)(A). A prisoner is entitled to a COA only if she has made

a “substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When, as here, the

district court denies the petition on procedural grounds, the petitioner must

demonstrate that “reasonable jurists” would find it “debatable whether the petition

states a valid claim of the denial of a constitutional right” and “whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). We are encouraged to address the procedural question first, only

proceeding to the constitutional question if necessary. Id. at 485.

      A.     AEDPA Statute of Limitations

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

establishes that state prisoners have a one-year period from the date their

conviction becomes final in which to file a federal habeas petition. See 28 U.S.C.

§ 2244(d)(1)(A). For convictions that became final before the effective date of

AEDPA—April 24, 1996—the Tenth Circuit recognizes a one-year grace period

in which to file a federal habeas claim. Hoggro v. Boone, 150 F.3d 1223,

1225–26 (10th Cir. 1998). This one-year period is tolled when the prisoner is

seeking post-conviction relief through the state courts. 28 U.S.C. § 2244(d)(2);

Hoggro, 150 F.3d at 1226.

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      Rawlins’s one-year period in which to seek federal habeas review began on

April 24, 1996, the effective date of AEDPA, and expired on April 24, 1997. Her

state post-conviction proceedings did not begin until October 2008, more than

eleven years after the Tenth Circuit’s grace period had ended. Therefore,

Rawlins’s habeas petition is time-barred, unless the AEDPA filing period is

equitably tolled.

      B.     Equitable Tolling

      Even if the habeas petition otherwise would be time-barred, a district court

may equitably toll the statute of limitations if the petitioner “diligently pursues

[her] claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond [her] control.” Fleming v. Evans, 481 F.3d

1249, 1254 (10th Cir. 2007) (quoting Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000)). We review the district court’s refusal to equitably toll a limitations

period for an abuse of discretion, and therefore we will grant a COA only if

reasonable jurists would debate whether the court’s decision was an abuse of

discretion. See Fleming, 481 F.3d at 1254 (citing Burger v. Scott, 317 F.3d 1133,

1137–38 (10th Cir. 2003)).

      Liberally construed, Rawlins’s appeal brief argues that her illiteracy and

her nervous breakdown resulting from prison abuse justify equitable tolling. She

also claims that she is “factually innocent of first-degree murder,” Pet’r’s Br. at 5,




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which, if true, would entitle her to equitable tolling. See Burger, 317 F.3d at

1141 (quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)).

      A prisoner’s illiteracy is insufficient to toll the statute of limitations. See

Yang v. Archuleta, 525 F.3d 925, 929–30, n.7 (10th Cir. 2008) (rejecting the

claim that a lack of proficiency in the English language is an extraordinary

circumstance, and citing with approval unpublished cases rejecting illiteracy as an

extraordinary circumstance). The district court did not abuse its discretion in

denying equitable tolling on this theory.

      Furthermore, Rawlins provides insufficient evidence that her nervous

breakdown was an extraordinary circumstance. Other than saying that she was

attacked by a fellow inmate in 1996—she does not provide a date or even a month

to narrow the time frame—she does not state when this nervous breakdown began,

how long it lasted, or describe her level of impairment during this period. The

Tenth Circuit has stated in several unpublished opinions that equitable tolling

because of mental illness is only warranted in circumstances such as “adjudication

of incompetence, institutionalization for mental incapacity, or evidence that the

individual is not ‘capable of pursuing [her] own claim’ because of mental

incapacity.” Hendricks v. Howard, 284 F. App’x 590, 591 (10th Cir. July 17,

2008) (quoting Reupert v. Workman, 45 F. App’x 852, 854 (10th Cir. Sep. 3,

2002)). Rawlins’s claim that she suffered from a nervous breakdown does not




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allege any of the above circumstances, therefore it was not an abuse of discretion

for the district court to deny her equitable tolling based on this theory.

      Finally, Rawlins’s claim of actual innocence similarly fails. She asserts

that she did not have the intent to commit murder, and therefore can be convicted,

at most, of manslaughter. This is a claim that should have been asserted on direct

appeal, and, in any event, fails on the merits. The statute under which she was

convicted reads as follows: “A person commits murder in the first degree when

the death of a child results from the willful or malicious injuring, torturing,

maiming or using of unreasonable force by said person or who shall willfully

cause, procure or permit any of said acts to be done upon the child.” O KLA . S TAT .

tit. 21, § 701.7(C). Since this statute does not require intent to kill, her argument

that she lacked specific intent is unavailing. She also claims that her husband was

actually the one who killed their daughter, but the statute allows for conviction of

a person who “permit[s]” these actions to be done, and therefore this claim also

fails to assert actual innocence.

                                    III. Conclusion

      For the foregoing reasons, we conclude that reasonable jurists could not

debate the correctness of the district court’s dismissal of Rawlins’s habeas

petition as time-barred. Accordingly, we DENY Rawlins’s request for a COA,




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DISMISS her appeal, and DENY her request to proceed in forma pauperis on

appeal.



                                                Entered for the Court,

                                                Timothy M. Tymkovich
                                                Circuit Judge




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