                                                                FILED
                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS         Tenth Circuit

                                TENTH CIRCUIT                              June 18, 2014
                       ___________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
LARRY DON WESLEY MAYNARD,

      Petitioner - Appellant,

                                                           No. 14-7014
v.
                                              (D.C. No. 6:13-CV-00027-RAW-KEW)
                                                           (E.D. Okla.)
JERRY CHRISMAN, Warden,

      Respondent - Appellee.
                    ____________________________________
        ORDER DENYING CERTIFICATE OF APPEALABILITY AND
                       DISMISSING APPEAL
                ____________________________________

Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.
                ____________________________________

      Larry Don Wesley Maynard, an Oklahoma state prisoner appearing pro se,1 seeks

to appeal the district court’s denial of his 28 U.S.C. § 2241 petition. The district court

dismissed Maynard’s petition as time-barred and denied his request for a certificate of

appealability (“COA”). Although Maynard never filed a COA application with us, we

construe his notice of appeal as a request for a COA. See Fed. R. App. P. 22(b)(2); see

also 28 U.S.C. § 2253(c)(1)(A) (No appeal may be taken from a “final order in a habeas

corpus proceeding in which the detention complained of arises out of process issued by a

State court” unless the petitioner first obtains a COA.); Montez v. McKinna, 208 F.3d


1
  We construe pro se filings liberally. See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th
Cir. 2010).
862, 869 (10th Cir. 2000) (holding that § 2253(c)(1)(A)’s requirements apply when a

state habeas petitioner is proceeding under § 2241).       Because Maynard’s appeal is

clearly time-barred, we deny his application for a COA, and dismiss his appeal.

       In 1991, an Oklahoma jury convicted Maynard of “Shooting with Intent to Kill,

After Former Conviction of Two Felonies,” leading to a life sentence. See Maynard v.

Boone, 468 F.3d 665, 667–68 (10th Cir. 2006). Maynard’s § 2241 petition, which he

filed in January 2013, argues the retroactive application of the 1998 amendment to Okla.

Stat. tit. 57, § 332.7, violates the Ex Post Facto Clause and his right to due process.

Maynard argues that prior to this amendment, parole consideration was annual, but under

the amended version of § 332.7, he is considered for parole only every three years. He

also claims his right to due process is being violated because he cannot address

Oklahoma’s Pardon and Parole Board personally. The district court denied Maynard’s

petition as time-barred under 28 U.S.C. § 2244(d)(1). This statute provides a 1-year

statute of limitation, which began running in this case from “the date on which the factual

predicate of the claim or claims presented could have been discovered through the

exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Maynard alleges in his habeas

petition that he had his first parole review under the amended § 332.7, in violation of the

Ex Post Facto Clause, in April 1998. But Maynard did not file this petition until January

2013, almost 15 years later.

       Maynard raises three arguments for why his petition is nevertheless timely. All

three arguments fail. First, Maynard argues “there should not be a statute of limitations

on [his] habeas petition” because he alleges an ongoing violation that occurs every time

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he is denied an annual parole review. Twenty-eight U.S.C. § 2244(d)(1), however, does

not contain any “ongoing harm” exception. Moreover, even if it could be said that a new

claim for relief accrues every times Maynard is denied an annual parole hearing,

Congress did not tie the statute of limitations in § 2244(d)(1) to the point at which a claim

accrues. Cf. Petrella v. Metro-Goldwyn-Mayer, Inc., ___ U.S. ___, 2014 WL 2011574

(May 19, 2014) (interpreting 17 U.S.C. § 507(b), which provides for a three year statute

of limitations from the date on which “the claim accrued”). Rather, Congress tied the

statute of limitations at issue to “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due diligence.” 28

U.S.C. § 2244(d)(1)(D). Here, Maynard knew or easily could have discovered the factual

predicate of his claim—that his parole consideration was now governed under the

amended § 332.7—after his first parole review under the amended § 332.7 in April 1998.

Even were we to say Maynard could not have discovered that the frequency of his parole

reviews had changed until April 1999, after a year had gone by without another parole

review, at most, this would have given Maynard until April 2000 to bring this petition

under § 2244(d)(1)(D).

       Maynard next states in one conclusory sentence that he suffers “from Mental

Illness that is a legal disability.” We take this as an argument that he is entitled to

equitable tolling because he suffers from a mental illness. As the district court pointed

out, however, we have applied equitable tolling to § 2244(d)(1)’s statute of limitations

“only in rare and exceptional circumstances.” York v. Galetka, 314 F.3d 522, 527 (10th

Cir. 2003).     Indeed, “[e]quitable tolling of a limitations period based on mental

                                            -3-
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.”

Reupert v. Workman, 45 F. App’x 852, 854 (10th Cir. 2002) (unpublished) (quoting

Biester v. Midwest Health Serv., Inc., 77 F.3d 1264, 1268 (10th Cir. 1996)). After

careful review, the district court found below that “although [Maynard] was found

incompetent to stand trial in 1988, he has provided no evidence, except his conclusory

allegations, that his mental illness prevented him from filing a timely habeas petition.

Therefore, equitable tolling is not justified.”     We agree with the district court’s

assessment.

      Finally, Maynard argues that “newly discovered evidence” justifies tolling the

statute of limitations. He claims he has evidence to show that Oklahoma authorities

knew the amended § 332.7 violated the Ex Post Facto Clause, and that these authorities

conspired to hide this information from inmates and the public. The claim is utterly

belied by our holding, over a decade ago, that the amended § 332.7 does not violate the

Ex Post Facto Clause. See Henderson v. Scott, 260 F.3d 1213, 1217 (10th Cir. 2001);

see also Maynard v. Fallin, ___ Fed. App’x ___, 2014 WL 1677982 (Apr. 29, 2014)

(unpublished) (affirming the denial of Maynard’s related 42 U.S.C. § 1983 claim because

§ 332.7 does not violate the Ex Post Facto Clause and stating “Our agreement with the

district court’s finding of no constitutional violation leads ineluctably to the conclusion

that Mr. Maynard’s § 1983 conspiracy claim is not viable.”).



                                            -4-
     For the reasons set forth above, Maynard’s request for a COA is DENIED and his

appeal is DISMISSED.

                                     Entered for the Court,



                                     Bobby R. Baldock
                                     United States Circuit Judge




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