                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 20, 2013
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



 HAROLD LEE MORRIS, JR.,

       Plaintiff - Appellant,
                                                       No. 12-2160
 v.                                        (D.C. No. 6:06-CV-01052-MV-SMV)
                                                         (D.N.M.)
 ROBERT ULIBARRI, Warden,

       Defendant - Appellee.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Harold Lee Morris, Jr., a New Mexico state inmate, seeks a certificate of

appealability (“COA”) to appeal from the district court’s dismissal of his federal

habeas corpus petition. 28 U.S.C. § 2254. Mr. Morris claims that he was

mentally incompetent at the time he signed his plea agreement. The district court

denied relief on the merits, adopting a similar recommendation from the

magistrate judge, who also determined that the petition was time-barred.

      We may only issue a COA if Mr. Morris makes a “substantial showing of

the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (quotation omitted). If a petition is dismissed on procedural grounds, the

petitioner must show that reasonable jurists would find it debatable not only
whether the petition states a valid constitutional claim, but also whether the

district court’s procedural ruling was correct. 28 U.S.C. § 2253(c); Slack v.

McDaniel, 529 U.S. 473, 484 (2000). A merits dismissal only requires the former

showing. See id. Regardless, we deny a COA and dismiss the appeal.

A.    Limitations

      Under 28 U.S.C. § 2244(d)(1)(A), Mr. Morris’s one-year filing deadline

began to run on October 5, 2002, the day after his conviction became final.

See N.M. R. App. P. 12-201(A)(2). Under § 2244(d)(2), the limitations period

was tolled from October 7, 2002 through November 21, 2002, during the

pendency of Mr. Morris’s properly filed motion for reconsideration of his

sentence. See Howard v. Ulibarri, 457 F.3d 1146, 1150 (10th Cir. 2006).

Accordingly, Mr. Morris had until mid-November 2003 to file his federal habeas

petition. Because his February 23, 2004 state habeas petition was filed after this

deadline, it did not toll. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir.

2006). Therefore, his federal habeas petition, filed October 26, 2006, was clearly

untimely unless Mr. Morris is entitled to equitable tolling.

      Mr. Morris argues that equitable tolling is warranted for two reasons: (1)

his mental incompetence and (2) his lack of access to legal materials. Counsel

was appointed for Mr. Morris and a magistrate judge held an evidentiary hearing

on the issue of equitable tolling. Both parties also submitted briefs.

      The magistrate judge concluded that Mr. Morris was not entitled to

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equitable tolling. First, the magistrate judge rejected the mental incompetence

ground, finding that Mr. Morris had failed to establish impairment rising to the

level of a rare and exceptional circumstance. Alternatively, the judge explained

that the alleged incompetence, even if believed, would only toll the limitation

period for a total of seventy-one days. In other words, Mr. Morris’s petition

would still be untimely. The magistrate judge also declined to apply equitable

tolling based on lack of access to legal materials, noting that Mr. Morris was able

to request legal materials through the Supreme Court law library and the Legal

Access Office. Finally, the magistrate judge addressed Mr. Morris’s allegation

that officials had confiscated his legal papers. Finding that Mr. Morris failed to

demonstrate he had diligently pursued his claims, the magistrate judge concluded

that equitable tolling was not warranted.

B.    Merits

      In addition to finding Mr. Morris’s petition to be time-barred, the

magistrate judge also recommended that the petition be denied on the merits. The

district court dismissed the petition on the merits reasoning that Mr. Morris could

not overcome the presumption of correctness attendant to a state court finding of

fact based on a credibility determination, that Mr. Morris was competent at the

time of his plea. The district court did not reach the limitations issue.



                                     Discussion

                                         -3-
      Mr. Morris argues that he was mentally incompetent at the time he signed

his plea agreement. In particular, he challenges the state court’s credibility

determinations regarding different doctors’ psychological evaluations. Credibility

determinations are like findings of fact. State court findings of fact are

“presumed to be correct” unless the petitioner shows by clear and convincing

evidence that the state court’s factual determination was erroneous. See 28

U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007). The

district court concluded that Mr. Morris could not make this showing. Given the

degree of deference that must be applied, we do not think the district court’s

conclusion is reasonably debatable. Similarly, the district court correctly denied

an evidentiary hearing because the state court rejected Mr. Morris’s mental

incompetence claim on the merits. See Cullen v. Pinholster, 131 S. Ct. 1388,

1398 (2011) (“We now hold that review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim on the merits.”).

       Mr. Morris also argues that the district court erred in denying his habeas

petition on the merits “without any briefing in federal court with the assistance of

counsel.” Aplt. Br. 3. “[T]he decision to appoint counsel is left to the sound

discretion of the district court . . . .” Engberg v. Wyoming, 265 F.3d 1109, 1122

(10th Cir. 2001). Given the straightforward nature of Mr. Morris’s merits claim,

along with the fact he was not entitled to an evidentiary hearing, we conclude that

the district court did not abuse its discretion by denying Mr. Morris’s motion for

appointed counsel. Id. at 1121–22.
      Finally, the magistrate judge’s resolution of the limitations issue is not

reasonably debatable.

      Accordingly, we DENY Mr. Morris’s request for a COA and DISMISS this

appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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