                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 24, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 VIRGIL O’BRYANT,

              Petitioner - Appellant,

 v.                                                     No. 14-6073
                                                 (D.C. No. 5:13-CV-01240-C)
 STATE OF OKLAHOMA,                                     (W.D. Okla.)

              Respondent - Appellee.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      Virgil O’Bryant, an Oklahoma state prisoner, proceeding pro se, seeks a

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

petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court

concluded that Mr. O’Bryant’s petition, filed almost 22 years after his conviction

became final in state court, is time-barred by the one-year statute of limitations

applicable to petitions under § 2254. See 28 U.S.C. 2244(d)(1)(A). For the



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
reasons stated below, we agree with the district court. Accordingly, exercising

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. O’Bryant a COA

and dismiss this matter.



                                 BACKGROUND

      On February 4, 1992, Mr. O’Bryant pled guilty to first degree murder and,

pursuant to plea negotiations, was sentenced in state court to life imprisonment.

He did not file a timely motion to withdraw his plea or otherwise appeal his

conviction or sentence. In August 1998, some six years later, he filed an

application for state post-conviction relief. The state district court denied the

application on November 15, 1999. Mr. O’Bryant did not appeal that denial.

      More than nine years later, on May 18, 2009, Mr. O’Bryant filed a second

application for state post-conviction relief. The state district court denied that

application on July 22, 2009. He appealed and the Oklahoma Court of Criminal

Appeals (“OCCA”) affirmed the district court on October 2, 2009. Thereafter, in

July 2013, almost four years after the denial of his previous application,

Mr. O’Bryant filed a third application for state post-conviction relief. The state

district court denied that application in August 2013, and in October 2013, the

OCCA affirmed, holding that the application was procedurally barred.

      Mr. O’Bryant filed the instant federal habeas petition on November 13,

2013. The petition asserts numerous claims of error relating to his guilty plea and

                                         -2-
representation, and errors by the state courts relating to his post-conviction

proceedings together with claimed admissions by the State in those proceedings.

The State moved to dismiss on the ground of untimeliness.

      To excuse the untimeliness of his petition Mr. O’Bryant makes general

claims of innocence, but mainly relies on assertions of incompetence and lack of

legal resources. Thus, he alleged in his petition that he was “mentally

incompetent” and that “[a] state medical examiner of mental health, certified

petitioner was not competent to enter a plea of guilty, that evidence fully

supported the medical/mental fact that this petitioner could not have committed

the crime.” He then asserted that the “state prison system [refused] to provide

him with access to a law library with books, research materials or trained legal

assistance from anyone.” Pet. at 2, R. Vol. 1 at 6. In his Objections to the

Magistrate’s Report and Recommendation (“R&R”), he stated that “[t]estimony

and evidence from N.A.M.I., post-traumatic-stress disorder experts, at 4200

Perimeter Center Drive, Suite 150, Okla. City, Okla. 73112 will prove from 1996

through 1998, petitioner suffered PTSD to require tolling in this case.” Obj. to

Mag. R&R at 4, R. Vol. 1 at 157.

      The magistrate judge to whom the petition was assigned issued a

comprehensive R&R that addressed these issues and recommended that the

petition be dismissed as time-barred. In that connection the R&R considered at

length and rejected all of Mr. O’Bryant’s arguments for tolling or otherwise

                                         -3-
excusing the statutory one-year time bar. The district court adopted the R&R and

dismissed the petition. Subsequently the court denied a COA and permission to

proceed on appeal without prepayment of costs or fees. Mr. O’Bryant renews his

request for both in this court. In his COA application Mr. O’Bryant reiterates the

arguments he raised in the district court, including his insistence that he be

allowed an evidentiary hearing to prove his allegations.



                                   DISCUSSION

      We may issue a COA only if the petitioner makes a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). And where, as here,

the district court dismisses a § 2254 petition on procedural grounds, we may issue

a COA only if “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).

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

establishes a one-year limitations period for state prisoners to seek federal habeas

relief, subject to several specific exceptions. 28 U.S.C. § 2244(d). In the

ordinary case, the clock starts when the state court judgment becomes final on

direct review or the expiration of the time for seeking such review. 28 U.S.C.

§ 2244(d)(1)(A). However, since Mr. O’Bryant was convicted in 1992 and the

AEDPA was enacted on April 24, 1996, the one-year statute of limitations

                                          -4-
commenced to run for him on that date, and, unless tolled, expired on April 25,

1997. See Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000).

      The statute effectively tolls the limitations period in cases where (1) state

action unlawfully impeded the prisoner from filing his habeas application, (2) the

prisoner asserts a constitutional right newly recognized by the Supreme Court and

made retroactive to collateral cases, or (3) the factual predicate for the prisoner’s

claim could not previously have been discovered through due diligence. 28

U.S.C. § 2244(d)(1)(B)-(D). It also expressly tolls the limitations period during

the pendency of a properly filed application for state collateral relief. Id. at

§ 2244(d)(2). In addition to those statutory tolling provisions, the Supreme Court

has held that AEDPA’s one-year limitations period may be tolled for equitable

reasons if the petitioner can show (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way and

prevented timely filing. Holland v. Florida, 560 U.S. 631, 649-650 (2010); Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005).

      Finally, the AEDPA statute of limitations may be overcome by a credible

claim of actual innocence. McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924,

1931-32 (2013). But “tenable actual innocence gateway pleas are rare,” as a

habeas petitioner “‘must show that it is more likely than not that no reasonable

juror would have convicted the petitioner in light of the new evidence.’” Id. at

1928, 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Proof of

                                          -5-
reasonable diligence is not a threshold requirement for the actual innocence

exception, but “[u]nexplained delay in presenting new evidence bears on the

determination whether the petitioner has made the requisite showing.” Id.

                                          A.

                          Statutory and Equitable Tolling

      None of the statutory tolling provisions apply to Mr. O’Bryant’s petition.

The State did not prevent Mr. O’Bryant from filing for federal habeas relief in a

timely fashion, much less for almost 22 years. And his argument that he was

prevented from doing so because of his pro se status, a lack of access to library

facilities, or legal assistance fails both factually and legally. His claims of no

access lack sufficient detail as to facility, time periods and reasons to enable any

sort of factual analysis, especially since, as a practical matter, the critical time

period in question covers more than five years (from conviction in 1992 through

the limitations period ending in 1997). More to the point, the Supreme Court has

“never accepted pro se representation alone or procedural ignorance as an excuse

for prolonged inattention when a statute’s clear policy calls for promptness. . . .”

Johnson v. United States, 544 U.S. 295, 316 (2005). See also Marsh v. Soares,

223 F.3. 1217, 1220 (10th Cir. 2000) (“[I]gnorance of the law, even for an

incarcerated pro se petitioner, generally does not excuse prompt filing.”); Gibson

v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (prisoner must show that the prison

actively “prevented him from learning about” the procedural rules).

                                          -6-
      Mr. O’Bryant cites a multitude of cases without showing that any of them

conferred a constitutional right newly recognized by the Supreme Court and made

retroactive to collateral cases in any way relevant to his case. Further, he has not

made a plausible showing that the factual predicate for his claim of mental

incompetence could not have been discovered prior to 1997 through the exercise

of due diligence, especially since he is asserting a condition he supposedly

suffered from at the time of his conviction and, therefore, during his life

preceding the crime.

      Finally, Mr. O’Bryant gets no help from the tolling allowed for periods

during the pendency of a properly filed application for state collateral relief. 28

U.S.C. § 2244(d)(2). That tolling applies only to applications filed before the

federal limitations period has run, in this case, applications filed prior to April

1997. See Gibson, 232 F.3d at 806. As indicated above, his applications, filed in

1998, 2009, and 2013, were well after the statute of limitations had run. See

Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for

post-conviction relief filed withing the one year allowed by AEDPA will toll the

statute of limitations.”). It follows that tardy post-conviction applications in state

court do not start a new limitations period running within which a federal

application can be timely filed. Such a rule would swallow the one year statute of

limitations period prescribed by § 2244(d). It also follows that federal courts do




                                          -7-
not consider the claims raised in state post-conviction applications filed after the

limitations period, including permitted extensions for tolling, have run.

      With respect to equitable tolling, Mr. O’Bryant has shown neither that

some extraordinary circumstance prevented him from timely seeking federal

habeas relief, nor that he has been pursuing his rights diligently given that almost

22 years elapsed from his conviction to his federal filing and that the intervening

period was marked by inactivity. As the district court put it:

              Petitioner waited until August 1998–well over a year after his
      statute of limitations expired–to file his first application for post-
      conviction relief, and then he did not appeal that application’s denial.
      He then waited almost eleven years, until May 2009, before seeking
      relief in state court again. And, after the OCCA affirmed state
      court’s denial of that application in October 2009, Petitioner waited
      another three years to file a third application for post-conviction
      relief. In all, it took Petitioner sixteen years after his statute of
      limitations expired to file his federal habeas petition. So, it is
      clear . . . that Petitioner has not diligently pursued his claims for
      purposes of equitable tolling.

R&R at 13-14; R. Vol. 1 at 151-52.

      Mr. O’Bryant argues that his mental incompetence and claim of innocence

based upon that condition qualify as an extraordinary circumstance that prevented

him from filing. But those claims are remarkably general and conclusory. Mental

incompetence, and even a late assertion of PTSD, covers a broad spectrum of

more specific conditions. And within those specific conditions there are degrees

of severity, functionality, and duration, all of which also include treatments,

medications and much more. As a result, federal courts will apply equitable

                                         -8-
tolling because of a petitioner’s mental condition only in cases of profound

mental incapacity such as that resulting in institutionalization or adjudged mental

incompetence. See, e.g., United States v. Sosa, 364 F.3d 507, 513 (4th Cir. 2004);

Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. 1998).

Mr. O’Bryant’s assertions fall far short of that level of specificity and incapacity

which qualify as an extraordinary circumstance that prevented him from filing for

years at a time.

      He also argues that the requirement that claims be exhausted in state court

prior to a federal habeas filing constituted a circumstance that prevented him from

filing before 2013. The argument is wrong for two reasons. First, he had five

years after his conviction to begin state post-conviction proceedings and failed to

do so. The onus of that delay falls on him. Second, as the Supreme Court has

pointed out “[a] prisoner . . . might avoid this predicament . . . by filing a

‘protective’ petition in federal court and asking the federal court to stay and abey

the federal habeas proceedings until the state remedies are exhausted.” Pace, 544

U.S. at 416.

                                           B.

                                  Actual Innocence

      As indicated above, the Supreme Court has recognized that “actual

innocence, if proved, serves as a gateway through which a petitioner may pass” to

bring a habeas petition after the statute of limitations expires. Perkins, 569 U.S.

                                           -9-
___, 133 S. Ct. at 1928. However, “claims of actual innocence are rarely

successful.” Schlup, 513 U.S. at 324. As relevant to this case, the petitioner must

show that his guilty plea “has probably resulted in the conviction of one who is

actually innocent.” Bousley v. United States, 523 U.S. 614, 623-624 (1998).

“The gateway should open only when a petition presents ‘evidence of innocence

so strong that a court cannot have confidence in the . . . [conviction] unless the

court is also satisfied that the trial was free of nonharmless constitutional error.’”

Perkins, 569 U.S. ___, 133 S. Ct. at 1936 (quoting Schlup, 513 U.S. at 316).

And, “a petitioner ‘must show that it is more likely than not that no reasonable

juror would have convicted him in light of the new evidence.’” Perkins, 569 U.S.

 , 133 S. Ct. at 1935 (quoting Schlup, 513 U.S. at 327). Actual innocence means

“factual innocence not mere legal insufficiency.” Bousley, 523 U.S. at 623.

      In making those determinations we may take into account the petitioner’s

diligence or lack thereof. “Unexplained delay in presenting new evidence bears

on the determination whether the petitioner has made the requisite showing,” and

is “part of the assessment whether actual innocence has been convincingly shown.

. . .” Perkins, 569 U.S. ___, 133 S. Ct. at 1935. Additionally, we may take into

account the fact that the petitioner’s conviction was based on a guilty plea

predicated on the petitioner’s representations of competence and voluntariness,

and findings by the court. United States v. Lemaster, 403 F.3d 216, 219-20 (4th

Cir. 2005).

                                          -10-
       In support of his claim of factual innocence Mr. O’Bryant’s § 2254 petition

states only that “[a] state medical examiner of mental health, certified petitioner

was not competent to enter a plea of guilty, that evidence fully supported the

medical/mental fact that this petitioner could not have committed the crime.” Pet.

at 2, R. Vol. 1 at 6. The petition then states that “[t]his newly discovered, is

because of state withholding of the medical report, and impeding raising this

actual innocence claim.” Id.

       This conclusory and speculative showing does not come close to satisfying

the demanding standards set out above for the “extremely rare” case that might

qualify for the actual innocence gateway to habeas review. Schlup, 513 U.S. at

324.



                                   CONCLUSION

       For the reasons stated above it is clear that reasonable jurists could not

debate the district court’s conclusion that Mr. O’Bryant’s petition is time-barred,

and the district court did not abuse its discretion in denying an evidentiary

hearing. Accordingly, we DENY Mr. O’Bryant’s application for a COA and

DISMISS this matter. Mr. O’Bryant’s motion to proceed in forma pauperis is

DENIED. He is reminded of his obligation to pay the filing fee in full.

                                        ENTERED FOR THE COURT

                                        Stephen H. Anderson
                                        Circuit Judge


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