* 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 w ithout oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 t he district court’s denial of his § 2254 petition as untimely under AEDPA. Ex ercising our jurisdiction pursuant to 28 U.S.C. § 1291, we deny Appellant’s m otion for a Certificate of Appealability (COA) and dismiss this appeal.- 2 -

In February 1996, Appellant pled guilty to assault and battery with a dangerous weapon, after former conviction of two ormore 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 act ions and appeals were unsuccessful. The district court denied Appellant’ s request for a COA, finding that Appellant’s habeas petition, filed on May 7, 2 001, 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 filin g his habeas petition should be equitably tolled, arguing that his competency was e valuated during the state proceedings using the wrong standard. We, like the district court, find Appellant’s equit able tolling argument unavailing, and we affirm substantially for the rea sons stated by the district court. The Supreme Court opinion that Appellant claims cha nged the standard used when evaluating competency, Cooper v. Oklahoma , 517 U.S. 348 (1996), was decided on April 16, 1996, over a year before Appel lant’s deadline for filing a habeas petition expired. Further, this court has h eld that AEDPA’s one-year statute of limitations is subject to equitable toll ing “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 Cooperstandard, instead asserting that his allegations of incompetency should toll the limitat ions period. However, “mere allegations” of incompetency when entering a guilty plea do not present extraordinary circumstances warranting equitable to lling. Fisher v. Gibson , 262 F.3d 1135, 1145 (10th Cir. 2001). Therefore, we DENY Appellant’s request for a COA an d DISMISS this appeal. We further deny Appellant’s motion to proc eed in forma pauperis

.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge