UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

______________________ _____________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. TROY DEWAYNE HOWARD, Defe ndant - 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 Dewa yne 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 be gin this collateral challenge. The federal district court thus dismisse d the challenge as untimely, and Mr. Howard wants to appeal. To appeal, he needs a certifi cate 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 Court2 appellate argument is reasonably debatable. Slack v. McDaniel , 529 U.S. 473, 483–84 (2000). In the absence of tolling, the on e-year period of limitations would have expired before Mr. Howard br ought this challeng e. 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 senten cing took place on January 30, 2014, and Mr. Howard di d not appeal, so his conviction became final on Monday, March 3, 2014. But Mr. Howard waited until September 5, 2018, to ma il the collateral challeng e 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 dist rict 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 ri ghts diligently and (2) the delay was caused by an “extra ordinary circumstance” be yond his or her control. Holland v. Florida , 560 U.S. 631, 649 (2010). We have never found eq uitable tolling based on a claimant’s mental capacity. See Harms v. IRS , 321 F.3d 1001, 1006 (10t h Cir. 2003). But we

2 In some circumstances, the one-y ear period runs from a different date. See 28 U.S.C. § 2255(f). Bu t these circumstances do not apply here.3 can assume for the sake of argument that mental disease and intellectual deficits could justify equitable to lling. Even with this assumption, however, Mr. Howard would “bear a str ong burden to show specific facts to support his claim of extraordinary circumstan ces 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 psyc hological 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 limitati ons period had already expired. So equitable tolling would not have salvag ed the collateral challenge. See Fisher v. Gibson , 262 F.3d 1135, 1142–43 (10th Cir. 2001) (c oncluding that a federal habeas petition was not tolle d based on time in state collateral proceedings when the prisoner did not file in state court un til expiration of the federal deadline). The psychological evaluation refl ected diagnoses of borderline intellectual functioning, schizoaffective disorder, and bipolar disorder. But the psychological evaluation did not show that Mr. Howard was incompetent to participat e in legal proceedings or unable to pursue his legal claims. Without such a showing, the court cannot to ll the one-year period of limitations. See Biester v. Midwest Health Serv., Inc ., 77 F.3d 1264, 1268 (10th Cir. 1998) (concluding that the lim itations period was not4 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 meetin g the filing deadline. Although Mr. Howard has a history of mental health treatment, his last treatment reportedly occurred in 2009.