*

 This order is not binding precedent except under the doctrines of law of

the case, res judicata and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

May 30, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRY LEWIS BROWN,

Petitioner-Appellant,

v.

WALTER DINWIDDIE, Warden,

Respondent-Appellee.

No. 07-5182

(D.C. No. CV-07-111-GKF-FHM)

(N.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.

On April 1, 1991, Jerry Lewis Brown was convicted pursuant to two

separate plea agreements of one count of rape by instrumentation after former

conviction of two or more felonies, one count of first degree rape after former

conviction of two or more felonies, one count of second degree rape, one count of

second degree rape after former conviction of two or more felonies, and two

counts of lewd molestation. Mr. Brown received a life sentence on each count. 
- 2 -

On February 20, 2007, Mr. Brown filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254, arguing that (1) he was mentally

incompetent at the time he entered into his plea agreements and (2) his counsel

was ineffective in not discovering this fact. On February 26, 2007, the district

court determined that the petition was subject to dismissal as barred by the oneyear statute of limitations applicable to habeas corpus proceedings and ordered

Mr. Brown to show cause why his petition should not be dismissed. Mr. Brown

timely responded to the court’s order, arguing that after exhausting his state

remedies in 1994 jailhouse lawyers and prison clerks refused to assist him, in part

because his “crimes involve very small children.” Mr. Brown further asserted

that he has a severe reading disability, was not made aware of the one-year statute

of limitations, and remains mentally incompetent. The district court found that

none of these proffered reasons entitled Mr. Brown to equitable tolling of the

limitations period, and dismissed his petition as time barred. Mr. Brown filed a

motion to alter or amend the judgment, attaching two handwritten statements from

fellow inmates stating that Mr. Brown “appears to [the declarant] to be incapable

of rational thought.” App., Doc. 8. The district court denied the motion, as well

as Mr. Brown’s motion for a certificate of appealability (“COA”) and motion to

proceed in forma pauperis (“IFP”). 

Mr. Brown now seeks a COA from this court and also renews his motion to

proceed IFP. Because Mr. Brown’s petition was denied on procedural grounds,
1

 Mr. Brown does not suggest that application of any of the other

provisions of 28 U.S.C. § 2244(d)(1) would result in a longer limitations period,

nor did he pursue any post-conviction relief during the one-year limitations period

that would entitle him to statutory tolling under Section 2244(d)(2). 

- 3 -

we may issue a COA only if Mr. Brown makes “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that “jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling,” Slack v. McDaniel,

529 U.S. 473, 484 (2000). Based on our independent review of the record in this

case, and for substantially the same reasons given by the district court, we

conclude that no reasonable jurist could debate the correctness of the district

court’s statute of limitations ruling. 

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) established

a one-year statute of limitations for filing a petition for a writ of habeas corpus.

28 U.S.C. § 2244(d)(1). For prisoners such as Mr. Brown whose convictions

became final prior to AEDPA’s enactment on April 24, 1996, the limitations

period began on the date on which AEDPA was enacted and expired a year later,

on April 24, 1997.1

 28 U.S.C. § 2244(d)(1)(A); United States v. Hurst, 322 F.3d

1256, 1259-61 (10th Cir. 2003). Mr. Brown filed his petition nearly a decade

after the limitations period expired, and so unless he can demonstrate that the

limitations period was equitably tolled, his petition was properly dismissed.
- 4 -

Mr. Brown has not, however, made a showing sufficient to lead any

reasonable jurists to debate whether he was entitled to equitable tolling. We have

squarely held that the fact that a prisoner did not know about AEDPA’s

limitations period does not entitle the prisoner to equitable tolling, Miller v. Marr,

141 F.3d 976, 978 (10th Cir. 1998); neither, more broadly, does “ignorance of the

law, even for an incarcerated pro se petitioner, . . . excuse prompt filing,” Marsh

v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). With respect to his claim that he

was mentally incompetent from April 24, 1996 to April 24, 1997, the district

court correctly noted that we have never recognized mental incapacity as a

justification for equitable tolling. Harms v. Internal Revenue Serv., 321 F.3d

1001, 1006 (10th Cir. 2003). Moreover, those courts that do recognize equitable

tolling for mental incapacity only do so in “exceptional circumstances.” Id. Mr.

Brown’s response to the district court’s order failed to indicate any evidence

pointing to his incompetence during 1996-97, let alone that his mental incapacity

elevates his circumstances to the exceptional. Indeed, nowhere does Mr. Brown

even indicate the nature of his incompetence, such as by identifying himself as

developmentally disabled or by pointing to a specific mental illness from which

he suffers. The only detail about his mental incompetence Mr. Brown provided in

his response is that it does not require that he be confined to the prison medical

unit. And though Mr. Brown’s petition appears to state that he was certified as

incompetent by health professionals in 1977, that was 20 years prior to the time
- 5 -

period relevant to this matter. The only evidence Mr. Brown is able to muster of

his incompetence in 1996-97 is the written statements of two fellow inmates

attached to his motion to alter or amend the judgment. These statements,

however, provide neither the declarant’s qualifications to make judgments about

mental capacity, nor, apart from general observation, the basis for the opinions

expressed. These statements are, moreover, completely silent as to anything

exceptional about Mr. Brown’s circumstances. 

Finally, with respect to Mr. Brown’s motion to proceed IFP, we note that

his “Statement of Institutional Accounts” indicates that he has in excess of $850

in his savings account, and under Okla. Stat. tit. 57, § 549(A)(5), funds from an

inmate’s savings account may be used for fees or costs in filing a federal action. 

Thus, Mr. Brown apparently has the financial ability to pay the $455 filing fee for

this appeal, and he has offered no convincing reason to conclude otherwise. He is

therefore ordered to pay the requisite filing fee and his motion to proceed IFP is

denied. See United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005); see also

Clark v. Oklahoma, 468 F.3d 711, 714-15 (10th Cir. 2006).

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge