UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

___________________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

TROY DEWAYNE HOWARD, 

 Defendant - Appellant. 

No. 19-6176 

(D.C. No. 5:18-CV-00897-D & 

5:13-CR-00165-D-1 

(W.D. Okla.) 

___________________________________________ 

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). 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 13, 2020

Christopher M. Wolpert 

Clerk of Court
2 

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. 
3 

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 
4 

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.