* This order is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. 

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

### FEB 1 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VICTOR RIVERA, JR.,

Petitioner-Appellant, No. 04-6317

v. Western District of Oklahoma STEVEN BECK, Warden,

Respondent-Appellee. (D.C. No. CV-04-808-C)

ORDER *

Before EBEL , MURPHY , and McCONNELL , Circuit Judges.
Victor Rivera Jr., a state prisoner proceeding pro se , seeks a certificate of appealability (COA) that would allow him to appeal from the district court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Riverahas failed to make “a substantial showing of the denial of a constitution al right,” we deny his request for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).

I. Background-2-

On September 5, 2000, Mr. Rivera pled guilty in Okl ahoma state court to a charge of first degree murder. The court sentenced Mr. Rivera to life imprisonment on December 5, 2000. Mr. Rivera did n ot file any post-conviction action in the state district court until August 25, 2003, and filed his federal habeas petition on July 1, 2004. The district court referred the matter to a magistr ate judge consistent with the provisions of 28 U.S.C. § 636(b)(1)(B), who det ermined that Mr. Rivera filed the petition outside of the one-year statute of lim itations imposed by the Antiterrorism and Effective Death Penalty Act of 19 96 (“AEDPA”). 28 U.S.C. § 2244(d). The magistrate judge found that Mr. River a’s one-year period to file a habeas petition began to run on December 15, 2000, the day his conviction became final, and expired on December 15, 2001 . See 28 U.S.C. § 2244(d)(1)(A). The magistrate judge also determined that no tollin g of the limitation period was warranted. After considering Mr. Rivera’s objections and condu cting a de novo review, the district court adopted the magistrate j udge’s Report and Recommendation in its entirety and dismissed Mr. Ri vera’s habeas petition as untimely. Mr. Rivera then applied to this Court fo r a COA.-3-

II. Analysis A COA may issue “only if the applicant has made a s ubstantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires a prisoner whose habeas petition was denie d solely on procedural grounds to show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a co nstitutional right and that jurists of reason would find it debatable whether the distr ict court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “[B]oth showings [must] be made before the court of appeals may entertain the appeal.” Id. at 485. If a procedural bar is “plain” and “the di strict court is correct to invoke it to dispose of the case, a reasonable juri st could not conclude either that the district court erred in dismissing the petitionor that the petitioner should be allowed to proceed further.” Id. at 484. Mr. Rivera argues that the district court erred in failing to equitably toll the period of limitation. Equitable tolling of AEDPA’s limitation period is limited to “rare and exceptional circumstances” such as “when an adversary’s conduct . . . prevents a prisoner from timely filing . . . .” Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000). The burden is on the petitio ner to demonstrate the circumstances that justify equitable tolling. Miller v. Marr , 141 F.3d 976, 977 (10th Cir. 1998).-4-

Mr. Rivera first claims that the statute of limitat ions should be tolled because the trial court failed to advise him of his right to appeal. The magistrate judge, however, noted in his Report and Recommendat ion that the Oklahoma Court of Criminal Appeals “found that the petitione r had been properly advised of his right to appeal.” Report and Recommendation at13. Support for this statement is found in the transcript of Mr. Rivera’ s sentencing hearing. Petitioner’s Br. Ex. A.2 at 4. Mr. Rivera has intr oduced no new evidence in his appeal to contradict the findings of the district c ourt. Absent clear and convincing evidence otherwise, a state court’s fact ual findings are presumed correct. 28 U.S.C. § 2254(e)(1). Thus, we reject this claim. Second, Mr. Rivera claims that the statute of limit ations should be tolled because he did not enter his guilty plea knowingly and intelligently due to mental deficiency. This claim is likewise without merit. “The Tenth Circuit has never held that mental incapacity tolls the statute of li mitation.” Biester v. Midwest Health Serv., Inc ., 77 F.3d 1264, 1268 (10th Cir. 1996). “The few c ourts which have recognized an exception for mental incapacity have limited the application of this equitable doctrine to exceptional circumsta nces.” Id

. Not only is Mr. Rivera’s claim for equitable tolli ng based on mental incapacity without legal support in this circuit, i t also lacks factual support. In March 2000, Mr. Rivera’s competency was evaluated b y a psychologist at Eastern-5-

State Hospital in Oklahoma who concluded that Mr. R ivera met “the common criteria associated with legal competency.” Petiti oner’s Br. Ex. A.4. at 3. At the time of sentencing, the trial court diligently revi ewed Mr. Rivera’s mental health history and determined that Mr. Rivera was legally competent to enter his plea. Petitioner’s Br. Ex. A.2.at 3-5, 9-10, 14. Again, Mr. Rivera has failed to introduce any evidence to overcome the presumption that a state court’s factual findings are correct. 28 U.S.C. § 2254(e)(1). Rat her, he has only restated his belief that he lacked capacity. Therefore, this cl aim must fail. Finally, Mr. Rivera argues that the magistrate judg e improperly raised the issue of limitations sua sponte. There was nothing improper in this. “If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition . . . .” Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. fol l. § 2254. This Court has found that it is proper to raise the issue of proce dural default sua sponte. See Hardiman v. Reynolds , 971 F.2d 500, 502 (10th Cir. 1992); U.S. v. Allen , 16 F.3d 377, 378-79 (10th Cir. 1994). We therefore find no basis for granting a certificate of appealability. Reasonable jurists would agree that the district co urt correctly applied § 2244(d)(1)(A) when calculating the date Mr. River a’s one-year period began to run and correctly determined that there was no basi s for equitable tolling.-6-

Because the district court properly invoked this pl ain procedural defect to dismiss Mr. Rivera’s petition, we need not reach his consti tutional claims. See Slack, 529
U.S. at 484



### S 85. Accordingly, we DENY Mr. Rivera’s request for a COA and DISMISS this appeal.

Entered for the Court, Patrick Fisher, Clerk