*After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.

F I L E D

United States Court of Appeals

Tenth Circuit

MAY 28 2002

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID HAROLD EUGENE EARLS,

Petitioner - Appellant,

v.

GLYNN BOOHER, Warden,

Respondent - Appellee.

No. 02-7017

(D.C. No. 01-CV-255-S)

(E.D. Oklahoma)

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, EBEL and LUCERO, Circuit Judges.

In his pro se habeas appeal, Appellant challenges the district court’s denial

of his § 2254 petition as untimely under AEDPA. Exercising our jurisdiction

pursuant to 28 U.S.C. § 1291, we deny Appellant’s motion for a Certificate of

Appealability (COA) and dismiss this appeal.
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In February 1996, Appellant pled guilty to assault and battery with a

dangerous weapon, after former conviction of two or more felonies. He was

sentenced to twenty years incarceration and did not file a motion to withdraw the

plea or file a direct appeal. He did not seek post-conviction relief until December

30, 1998, and both of his state post-conviction actions and appeals were

unsuccessful. The district court denied Appellant’s request for a COA, finding

that Appellant’s habeas petition, filed on May 7, 2001, was barred by AEDPA’s

statute of limitations by more than four years, as the AEDPA deadline required

that a habeas petition be filed by April 23, 1997. On appeal, Appellant urges this

court to find that the limitations period for filing his habeas petition should be

equitably tolled, arguing that his competency was evaluated during the state

proceedings using the wrong standard.

We, like the district court, find Appellant’s equitable tolling argument

unavailing, and we affirm substantially for the reasons stated by the district court. 

The Supreme Court opinion that Appellant claims changed the standard used

when evaluating competency, Cooper v. Oklahoma, 517 U.S. 348 (1996), was

decided on April 16, 1996, over a year before Appellant’s deadline for filing a

habeas petition expired. Further, this court has held that AEDPA’s one-year

statute of limitations is subject to equitable tolling “only in rare and exceptional

circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal
- 3 -

quotations and citations omitted). Appellant does not present any evidence that

he was incompetent under the Cooper standard, instead asserting that his

allegations of incompetency should toll the limitations period. However, “mere

allegations” of incompetency when entering a guilty plea do not present

extraordinary circumstances warranting equitable tolling. Fisher v. Gibson, 262

F.3d 1135, 1145 (10th Cir. 2001). 

Therefore, we DENY Appellant’s request for a COA and DISMISS this

appeal. We further deny Appellant’s motion to proceed in forma pauperis.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge