                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 12 2000
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    CURTIS D. WORLEY,

                  Petitioner-Appellant,

    v.                                                    No. 99-2103
                                                   (D.C. No. CIV-97-1470-JP)
    RON LYTLE, Warden, Southern New                        (D. N.M.)
    Mexico Correctional Facility and
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
      Petitioner Curtis D. Worley appeals the district court’s denial of his petition

for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, as untimely.

Because petitioner has not made a substantial showing of the denial of a

constitutional right, we deny his application for a certificate of appealability and

dismiss the appeal.

      Petitioner is currently serving state sentences for felony murder and

criminal sexual penetration. He was convicted in November 1982, and his

convictions were affirmed on direct appeal in January 1984. In March 1984,

petitioner filed for modification of his sentence, which was denied in August

1984. On April 16, 1997, petitioner filed a state habeas petition, which was

denied the same day. Petitioner sought certiorari review by the New Mexico

Supreme Court, which was denied on May 20, 1997.

      On November 17, 1997, petitioner filed this federal habeas action. The

magistrate judge to whom the matter was referred recommended that the petition

be denied as untimely. In his objections to the recommended disposition,

petitioner argued that the limitations period should be equitably tolled because his

mental condition prevented him from meeting the filing deadline. After an

evidentiary hearing, the district court denied petitioner’s request for equitable

tolling, finding the evidence did not establish an inability to meet the time limits.

      As a prerequisite to judicial review, petitioner must obtain a certificate of


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appealability by making a substantial showing of the denial of a constitutional

right. See 28 U.S.C. § 2253(c). 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.   See Slack v. McDaniel , 120 S. Ct. 1595, 1604 (2000).

If petitioner cannot make a threshold showing on the procedural issue, we need

not address the constitutional issues.   See id.

       On April 24, 1996, the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA) took effect, significantly amending the habeas corpus statutes.

One such amendment imposed a one-year limitation on a state prisoner’s right to

bring a federal habeas action, running from the date the prisoner’s conviction

became final. See 28 U.S.C. § 2244(d)(1)(A). To avoid retroactively imposing

this limitation on state prisoners whose convictions became final before AEDPA’s

effective date, we recognized a one-year grace period within which such prisoners

could file their federal habeas petitions. See Hoggro v. Boone, 150 F.3d 1223,

1225 (10th Cir. 1998). This one-year grace period is subject to the § 2244(d)(2)

tolling rule during the pendency of a properly filed post-conviction proceeding.

See id. at 1226 & n.4. The limitations period may also be equitably tolled when

extraordinary circumstances beyond a prisoner’s control make it impossible to file


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a petition on time.   See Miller v. Marr , 141 F.3d 976, 978 (10th Cir.),   cert.

denied , 525 U.S. 891 (1998) .

       Under these rules, petitioner had until April 24, 1997, to file his federal

habeas petition, unless he had a properly filed state post-conviction proceeding

pending which would toll the time limit. On April 16, 1997, petitioner filed an

application for post-conviction relief in the state district court. This served to toll

the limitations period eight days before it was to expire. The limitations period

remained tolled until the New Mexico Supreme Court denied certiorari review on

May 20, 1997. Petitioner then had eight days in which to file his habeas petition

with the federal district court. Petitioner did not file his habeas petition until

almost six months later, on November 17, 1997. Therefore, the petition was

untimely.

       Petitioner argues the limitations period should have been equitably tolled

due to his mental condition. Our decision in Biester v. Midwest Health Services,

Inc. , 77 F.3d 1264, 1268 & n.2 (10th Cir. 1996), describes the various standards

that have been applied in determining whether to equitably toll a statute of

limitations based on a claim of mental incapacity. We noted that if we were to

recognize such a rule, tolling would be allowed only under “exceptional

circumstances,” such as an adjudication of incompetency, institutionalization




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based on the alleged mental incapacity, or incapacitation to the degree that the

litigant is unable to pursue his or her suit.     Id.

       Here, petitioner was neither adjudicated incompetent nor institutionalized

for his mental impairment during the time period at issue. Instead, the evidence

shows that petitioner handled, with assistance, other legal matters which required

action during the statute of limitations period. It is undisputed that he knew of

the AEDPA time limits, although he may not have fully understood them.       See R.

II, Trans. at 60. We have held a prisoner’s ignorance of the AEDPA time limits

does not present a circumstance meriting equitable tolling.   See Miller , 141 F.3d

at 978. Moreover, petitioner’s lack of diligence in pursuing his claims during the

thirteen years preceding his habeas petition undermines his request for equitable

tolling. See id. After closely reviewing the entire record, we conclude that the

district court’s denial of equitable tolling is not reasonably debatable among

jurists of reason.




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     Petitioner’s application for a certificate of appealability is DENIED, and

the appeal is DISMISSED.



                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




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