                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     September 8, 2006
                   UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                  TENTH CIRCUIT                         Clerk of Court



 LA W RENCE R. GRO SS,

       Petitioner - A ppellant,
 v.

 STATE OF KAN SAS; RO GER                               No. 06-3079
 W ERHOLTZ, Secretary of                         (D.C. No. 05-CV-3425-SAC)
 Corrections; DA VID M cKU NE,                            (D . Kan.)
 W arden, Lansing Correctional
 Facility; and A TTO RN EY G ENERAL
 OF KANSAS,

       Respondents - Appellees.



                     OR DER DENYING A CERTIFICATE
                           OF APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Lawrence Gross, a state prisoner, seeks a certificate of appealability

(“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. For substantially the same reasons set forth by the district court, we

D EN Y a COA and DISM ISS.

      Gross pled guilty to first degree murder on M ay 21, 1973. He was

convicted and sentenced to life in prison. W hile in prison, Gross learned that he

suffered from W ilson’s disease, a disorder affecting the body’s ability to
metabolize copper. On September 3, 2002, Gross filed a motion to withdraw his

guilty plea in K ansas district court, alleging that he w as incompetent to enter a

plea because of his illness. After his motion was denied, Gross filed a number of

state appeals, culminating in the Kansas Supreme Court’s denial of further review

on January 27, 2005. Gross filed a habeas petition pursuant to 28 U.S.C. § 2254

in federal district court on November 2, 2005. Finding the petition time-barred,

the district court denied his petition and his subsequent request for a COA.

Having failed to obtain a COA from that court, Gross now requests a COA from

this court. 1

       AEDPA imposes a one-year statute of limitations on habeas petitions filed

by state prisoners. 28 U.S.C. § 2244(d). Because this law went into effect on

April 24, 1996, after Gross’ conviction became final, he had until April 24, 1997

to file a habeas petition. See United States v. Hurst, 322 F.3d 1256, 1260 (10th



       1
         Gross’ petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires G ross to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Gross a COA ,
he may not appeal the district court’s decision absent a grant of COA by this
court.

                                         -2-
Cir. 2003). Section 2244(d)’s one-year limitation period is tolled while a prisoner

pursues state post-conviction relief or other collateral review. 28 U.S.C.

§ 2244(d)(2). However, Gross did not file his motion to withdraw his guilty plea

until September 3, 2002 – more than five years after the statute of limitations had

run.

       Gross contends that a substantive mental competency claim cannot be

procedurally barred, relying on Rogers v. Gibson, 173 F.3d at 1289. In R ogers

we held that a substantive mental competency claim may not be barred by

procedural default in state court. Id. However, Gross did not default in state

court – he simply failed to file a timely habeas petition – making Rogers

irrelevant to the present analysis.

       Nor would equitable tolling be appropriate in this case. Equitable tolling

“is only available when an inmate diligently pursues his claims and demonstrates

that the failure to timely file was caused by extraordinary circumstances beyond

his control.” M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Gross has

not shown any extraordinary circumstances beyond his control that prevented him

from filing a timely petition. The record indicates that his disease was being

successfully treated long before the statute of limitations began to run.

       For the foregoing reasons, Gross’ request for a COA is DENIED and his




                                        -3-
appeal is DISM ISSED.



                        ENTERED FOR THE COURT




                        Carlos F. Lucero
                        Circuit Judge




                         -4-
