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

                          FOR THE TENTH CIRCUIT                        April 13, 2020
                      ___________________________________________
                                                                    Christopher M. Wolpert
                                                                        Clerk of Court
    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                  No. 19-6176
                                                (D.C. No. 5:18-CV-00897-D &
    TROY DEWAYNE HOWARD,                             5:13-CR-00165-D-1
                                                        (W.D. Okla.)
          Defendant - Appellant.
                     ___________________________________________

                                       ORDER
                      ___________________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
               ___________________________________________

         This is Mr. Troy Dewayne Howard’s collateral challenge to a federal

conviction. 1 A one-year limitations period applies, 28 U.S.C. § 2255(f), but

Mr. Howard waited four years to begin this collateral challenge. The

federal district court thus dismissed the challenge as untimely, and Mr.

Howard wants to appeal.

         To appeal, he needs a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(B). We can grant the certificate only if Mr. Howard’s




1
     The conviction was for distribution of child pornography. 18 U.S.C.
§ 2252A(a)(1).
appellate argument is reasonably debatable. Slack v. McDaniel, 529 U.S.

473, 483–84 (2000).

     In the absence of tolling, the one-year period of limitations would

have expired before Mr. Howard brought this challenge. The one-year

period of limitations started when Mr. Howard’s conviction became final.

See 28 U.S.C. § 2255(f)(1). 2 Mr. Howard’s sentencing took place on

January 30, 2014, and Mr. Howard did not appeal, so his conviction

became final on Monday, March 3, 2014. But Mr. Howard waited until

September 5, 2018, to mail the collateral challenge to the court clerk. See

Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998) (stating that a

prisoner’s habeas petition is deemed “filed” when placed in the prison’s

mail system).

     Mr. Howard argues that the district court erred by failing to

adequately consider the possibility of equitable tolling. Under equitable

tolling, a claimant can obtain additional time by showing that (1) the

claimant was pursuing his or her rights diligently and (2) the delay was

caused by an “extraordinary circumstance” beyond his or her control.

Holland v. Florida, 560 U.S. 631, 649 (2010).

     We have never found equitable tolling based on a claimant’s mental

capacity. See Harms v. IRS, 321 F.3d 1001, 1006 (10th Cir. 2003). But we


2
      In some circumstances, the one-year period runs from a different
date. See 28 U.S.C. § 2255(f). But these circumstances do not apply here.
                                      2
can assume for the sake of argument that mental disease and intellectual

deficits could justify equitable tolling. Even with this assumption,

however, Mr. Howard would “bear a strong burden to show specific facts

to support his claim of extraordinary circumstances and due diligence.”

Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). Mr. Howard seeks

to satisfy this burden based on a letter and psychological evaluation, but

these documents would not trigger equitable tolling.

      In the letter, Mr. Howard requested an attorney. By the time of the

letter, however, the limitations period had already expired. So equitable

tolling would not have salvaged the collateral challenge. See Fisher v.

Gibson, 262 F.3d 1135, 1142–43 (10th Cir. 2001) (concluding that a

federal habeas petition was not tolled based on time in state collateral

proceedings when the prisoner did not file in state court until expiration of

the federal deadline).

      The psychological evaluation reflected diagnoses of borderline

intellectual functioning, schizoaffective disorder, and bipolar disorder. But

the psychological evaluation did not show that Mr. Howard was

incompetent to participate in legal proceedings or unable to pursue his

legal claims. Without such a showing, the court cannot toll the one-year

period of limitations. See Biester v. Midwest Health Serv., Inc., 77 F.3d

1264, 1268 (10th Cir. 1998) (concluding that the limitations period was not



                                      3
tolled in the absence of an adjudication of incompetency,

institutionalization, or inability to pursue the claim). 3

      Given the indisputable failure to justify equitable tolling, no

reasonable jurist could question the correctness of the district court’s

ruling. We thus decline to issue a certificate of appealability. In the

absence of a certificate, we also dismiss the appeal. See p. 1, above.

                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




3
      Mr. Howard does not present evidence that institutionalization
prevented him from meeting the filing deadline. Although Mr. Howard has
a history of mental health treatment, his last treatment reportedly occurred
in 2009.
                                        4
