* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore is ordered submitted without oral argument. 

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

### JUN 12 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROY GENE EASTERWOOD, Petitioner - Appellant, vs. RON CHAMPION; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents - Appellees. No. 99-7103

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 98-CV-553-BU)

Submitted on the briefs: * Roy Gene Easterwood, pro se. W.A. Drew Edmondson, Attorney General, State of Okl ahoma and Kellye Bates, Assistant Attorney General, Oklahoma City, Oklahoma , for Respondents - Appellees.

Before BRORBY , KELLY , and MURPHY , Circuit Judges.1 In granting a certificate of appealability, we requ ired the state to file a

brief on the certified question. Rather than addre ssing the time bar issue, however, the state asserts that Mr. Easterwood neve r raised the issue of substantive competency in his habeas petition befor e the district court. The state interprets Mr. Easterwood’s claim solely as one of insanity at the time of the commission of the act and, therefore, argues that s ubstantive competency is not properly before this court. We disagree. It is well recognized that pro se ple adings are to be construed liberally. See generallyBarnett v. Hargett , 174 F.3d 1128, 1133 (10th Cir. 1999). Although Mr. Easterwood’s claim is not stated as cl early as possible, Issue #1 of his habeas petition is specifically entitled “tried , convicted and sentenced while - 2 - KELLY , Circuit Judge.

Roy Easterwood, an inmate appearing pro se, seeks t o appeal from the denial of his third habeas petition, 28 U.S.C. § 22 54. We granted Mr. Easterwood permission to bring this petition based upon eviden ce discussed in Williamson v. Ward , 110 F.3d 1508 (10th Cir. 1997) “regarding the competency of the state’s expert witness who testified at [Mr. Easterwood’s] trial as to his sanity.” Easterwood v. Champion , No. 98-7138, at 2 (10th Cir. Oct. 28, 1998). Mr. Easterwood subsequently filed this habeas petition on November 23, 1998, claiming that he had been “tried, convicted and sen tenced while in-fact incompetent/insane.” The district court dismissed the petition as time-barred and we granted a certificate of appealability on the fo llowing question: “Did the district court err in dismissing appellant’s substa ntive competency claim as timebarred under 28 U.S.C. § 2244(d)?” 1 We now reverse.in-fact incompetent/insane.” The rest of the habea s petition, when read in light of

this title, is sufficient to demonstrate that Mr. E asterwood is raising a substantive competency claim. Moreover, despite the state’s assertion, the previo us order of this court granting permission to file a successive habeas pet ition did not limit Mr. Easterwood to an “insane at the time of the act” de fense. That order stated: “[Mr. Easterwood] has made ‘a sufficient showing of possi ble merit to warrant a fuller exploration by the district court’ that ‘but for co nstitutional error, no reasonable fact finder would have found the applicant guilty o f the underlying offense.’” Easterwood v. Champion , No. 98-7138, at 2. A substantive competency clai m involves a constitutional right not to be tried whi le incompetent, see Barnett , 174 F.3d at 1133, while an “insane at the time of the a ct” defense is a nonconstitutional defense aimed at the mens rea elemen t of the crime. Because our previous order referred to constitutional error, itis clear that a substantive competency claim was presumed. - 3 - In 1979, Mr. Easterwood was charged in Oklahoma wit h the crime of first degree murder. As one of his defenses, Mr. Easterw ood presented the testimony of several experts that he was insane at the time o f committing the act, as well as insane at the time of trial. See generally Easterwood v. State , No. F-80-418 (Okla. Crim. App. Sept. 14, 1982) (direct criminal appeal) (discussing testimony of experts that, at time of trial, Mr. Easterwood w as incapable of making distinction between right and wrong). In response, the state presented a single expert, Dr. R. D. Garcia, who testified that, in hi s opinion, defendant was not insane at the time of the offense and was competentto stand trial. Based upon this testimony, the jury found that Mr. Easterwood was competent, convicted him of first degree murder, and sentenced him to life i mprisonment. On April 10, 1997, this court issued an opinion in Williamson v. Ward , 110- 4 -

F.3d 1508 (10th Cir. 1997). That case discussed th e fact that in 1979, Dr. R.D. Garcia was suffering “from severe untreated bipolardisorder” which was possibly severe enough to “‘impair and distort his diagnosti c judgment.’” Id . at 1519 (citation omitted). Mr. Easterwood discovered this case in the prison law library on August 12, 1998 and filed his Application for Le ave to File a Successive Habeas Corpus Petition with this court on October 5 , 1998. Under 28 U.S.C. § 2244(d)(1)(D), a habeas petition may be brought within one year of “the date on which the factual predicat e of the claim or claims presented could have been discovered through the ex ercise of due diligence.” In the instant case, the factual predicate for Mr. Eas terwood’s claim (i.e. new evidence) is the mental instability of Dr. Garcia d iscussed in Williamson . The district court held that Mr. Easterwood could have discovered this information on the date that the Williamsonopinion was issued, i.e. April 10, 1997. Because Mr. Easterwood did not attempt to file a successive hab eas petition until October 5, 1998 – over one year after the Williamson opinion was issued – he was time barred. In a denied motion for reconsideration and now on appeal, Mr. Easterwood challenges this determination and points out that § 2244(d)(1)(D) requires the one year limitation to run from the date on which the i nformation was discoverable by “due diligence.” Mr. Easterwood argues that, for aprisoner, a case is2 We have no information whether an advance sheet or soft back copy of

Williamsonmay have been accessible in the prison law library before the hard back copy of 110 F.3d arrived. On remand, the stat e is free to make an offer of proof that Williamsonwas available to Mr. Easterwood before July 15, 19 97. Likewise, the district court is not necessarily lim ited to determining when the prison law library had a copy of Williamson–it also may consider any evidence that Mr. Easterwood had access to the information a bout Dr. Garcia through means other than Williamson

. - 5 - discoverable by “due diligence” on the date the opi nion became accessible in the prison law library, not the date the opinion was is sued. We agree. Unlike the general population which has greater access to court opinions, prisoners must rely exclusively upon the prison law library to discoverinformation contained in new cases. Holding that a prisoner could with “due dil igence” discover information related in a case before the prison law library has access to a copy of the opinion simply ignores the reality of the prison system. Mr. Easterwood submitted a request form to the pris on law library with the following question: “On what month, day and year di d Williamson v. Ward , 110 F.3d 1508 (10th 1997), become accessable [sic] to t he population in the law library.” The law library supervisor responded in a signed statement: “The Mack Alford Correctional Center, Law Library received a copy of the Hard Back Book (Vol. 110 Federal Reporter 3rd) July 15, 1997.” Th erefore, the one year limitations period did not begin to run until July 15, 1997. 2 Without more, the one year limitation would still a ct as a bar because the- 6 -

instant habeas petition was not filed until Novembe r 23, 1998. However, on April 16, 1998, Mr. Easterwood filed a post-conviction ap plication in Oklahoma state court, which effectively tolled the limitations per iod under 28 U.S.C. § 2244(d)(2). His application was denied by the stat e district court on June 15, 1998. The limitations period did not begin to run again until August 28, 1998, when the denial of post-conviction relief was affir med by the Oklahoma Court of Criminal Appeals. Because there were approximately ninety days left in the limitations period (i.e. April 16, 1998 to June 15, 1998), Mr. Easterwood would have had until November 28, 1998 to file his habeas petition. However, this period was further tolled during the twenty-three d ays that Mr. Easterwood’s request to file a successive habeas petition was pe nding before this court. Therefore, the one year limitations period did not run until approximately December 20, 1998, and Mr. Easterwood’s November 23 , 1998 filing was timely. The decision of the district court is REVERSED, the case is REMANDED for further proceedings consistent with this order and judgment, and Mr. Easterwood’s Motion to Re-Visit and Re-Call Prior M andate is DENIED.