                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                                FEB 1 2005
                                  TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 VICTOR RIVERA, JR.,

               Petitioner-Appellant,                         No. 04-6317
          v.                                       Western District of Oklahoma
 STEVEN BECK, Warden,                                  (D.C. No. CV-04-808-C)

               Respondent-Appellee.


                                       ORDER *


Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


      Victor Rivera Jr., a state prisoner proceeding     pro se , seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254.        See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Rivera has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).



I. Background


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      On September 5, 2000, Mr. Rivera pled guilty in Oklahoma state court to a

charge of first degree murder. The court sentenced Mr. Rivera to life

imprisonment on December 5, 2000. Mr. Rivera did not file any post-conviction

action in the state district court until August 25, 2003, and filed his federal habeas

petition on July 1, 2004.

      The district court referred the matter to a magistrate judge consistent with

the provisions of 28 U.S.C. § 636(b)(1)(B), who determined that Mr. Rivera filed

the petition outside of the one-year statute of limitations imposed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. §

2244(d). The magistrate judge found that Mr. Rivera’s one-year period to file a

habeas petition began to run on December 15, 2000, the day his conviction

became final, and expired on December 15, 2001     . See 28 U.S.C. § 2244(d)(1)(A).

The magistrate judge also determined that no tolling of the limitation period was

warranted.

      After considering Mr. Rivera’s objections and conducting a de novo

review, the district court adopted the magistrate judge’s Report and

Recommendation in its entirety and dismissed Mr. Rivera’s habeas petition as

untimely. Mr. Rivera then applied to this Court for a COA.




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II. Analysis

      A COA may issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires a prisoner whose habeas petition was denied solely on procedural

grounds to show “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists

of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “[B]oth

showings [must] be made before the court of appeals may entertain the appeal.”

Id. at 485. If a procedural bar is “plain” and “the district court is correct to

invoke it to dispose of the case, a reasonable jurist could not conclude either that

the district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id. at 484.

      Mr. Rivera argues that the district court erred in failing to equitably toll the

period of limitation. Equitable tolling of AEDPA’s limitation period is limited to

“rare and exceptional circumstances” such as “when an adversary’s conduct . . .

prevents a prisoner from timely filing . . . .” Gibson v. Klinger, 232 F.3d 799,

808 (10th Cir. 2000). The burden is on the petitioner to demonstrate the

circumstances that justify equitable tolling. Miller v. Marr, 141 F.3d 976, 977

(10th Cir. 1998).


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      Mr. Rivera first claims that the statute of limitations should be tolled

because the trial court failed to advise him of his right to appeal. The magistrate

judge, however, noted in his Report and Recommendation that the Oklahoma

Court of Criminal Appeals “found that the petitioner had been properly advised of

his right to appeal.” Report and Recommendation at 13. Support for this

statement is found in the transcript of Mr. Rivera’s sentencing hearing.

Petitioner’s Br. Ex. A.2 at 4. Mr. Rivera has introduced no new evidence in his

appeal to contradict the findings of the district court. Absent clear and

convincing evidence otherwise, a state court’s factual findings are presumed

correct. 28 U.S.C. § 2254(e)(1). Thus, we reject this claim.

      Second, Mr. Rivera claims that the statute of limitations should be tolled

because he did not enter his guilty plea knowingly and intelligently due to mental

deficiency. This claim is likewise without merit. “The Tenth Circuit has never

held that mental incapacity tolls the statute of limitation.” Biester v. Midwest

Health Serv., Inc., 77 F.3d 1264, 1268 (10th Cir. 1996). “The few courts which

have recognized an exception for mental incapacity have limited the application

of this equitable doctrine to exceptional circumstances.” Id.

       Not only is Mr. Rivera’s claim for equitable tolling based on mental

incapacity without legal support in this circuit, it also lacks factual support. In

March 2000, Mr. Rivera’s competency was evaluated by a psychologist at Eastern


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State Hospital in Oklahoma who concluded that Mr. Rivera met “the common

criteria associated with legal competency.” Petitioner’s Br. Ex. A.4. at 3. At the

time of sentencing, the trial court diligently reviewed Mr. Rivera’s mental health

history and determined that Mr. Rivera was legally competent to enter his plea.

Petitioner’s Br. Ex. A.2.at 3-5, 9-10, 14. Again, Mr. Rivera has failed to

introduce any evidence to overcome the presumption that a state court’s factual

findings are correct. 28 U.S.C. § 2254(e)(1). Rather, he has only restated his

belief that he lacked capacity. Therefore, this claim must fail.

       Finally, Mr. Rivera argues that the magistrate judge improperly raised the

issue of limitations sua sponte. There was nothing improper in this. “If it plainly

appears from the petition and any attached exhibits that the petitioner is not

entitled to relief in the district court, the judge must dismiss the petition . . . .”

Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. This Court has

found that it is proper to raise the issue of procedural default sua sponte. See

Hardiman v. Reynolds, 971 F.2d 500, 502 (10th Cir. 1992); U.S. v. Allen, 16 F.3d

377, 378-79 (10th Cir. 1994).

       We therefore find no basis for granting a certificate of appealability.

Reasonable jurists would agree that the district court correctly applied

§ 2244(d)(1)(A) when calculating the date Mr. Rivera’s one-year period began to

run and correctly determined that there was no basis for equitable tolling.


                                            -5-
Because the district court properly invoked this plain procedural defect to dismiss

Mr. Rivera’s petition, we need not reach his constitutional claims. See Slack, 529

U.S. at 484 S 85.

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

appeal.



                                               Entered for the Court,

                                               Patrick Fisher, Clerk




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