                                                                        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        This order and judgment is not binding precedent, except under the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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