                                                                          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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