UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

BOBBY BRUCE WHITE, Petitioner - Appellant,

v. RAY ROBERTS; DEREK SCHMIDT, Respondents - Appellees. No. 14-3189 (D.C. No. 5:13-CV-03126-SAC) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before TYMKOVICH , O’BRIEN , and GORSUCH , Circuit Judges.
Bobby Bruce White was convicted by a Ka nsas jury of first degree murder. He is currently serving a li fe sentence. Proceeding pro se, White seeks a certificate of appealability (COA) to challenge the di strict court’s dismissal of his habeas petition brought under 28 U. S.C. § 2254 as untimely. 1 We reject White’s argument that he is entitled to equitable tolling. Exercising jurisdiction under 28 U.S.C. § 2253, we deny his COA reques t and dismiss this matter.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 Because White proceeds pro se, we construe his fili ngs liberally. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). FILED United States Court of Appeals Tenth Circuit 

### April 1, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - I. Background White was convicted of first degree murd er on retrial in 2005. On June 22, 2007, the Kansas Supreme Court affirmed the conviction on direct appeal. On May 19, 2008, White filed a post-c onviction action in state court. The state court denied relief on June 5, 2009, and on February 4, 2011, the Kansas Court of Appeals affirmed that decision. On March 1, 20 11, White filed a moti on for review in the Kansas Supreme Court. That court denied review on April 25, 2011. White filed for federal habeas relief under 28 U.S.C. § 2254 on July 18, 2013. The district court determined the petition was ti me barred. Finally, the c ourt denied White’s request for a COA. II. Discussion A. The Requirement of a COA A COA is a jurisdictional prerequisite to this court’s re view of a § 2254 petition. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003). To receive a COA, a petitioner mu st make a “substan tial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In cases where the district court denies a habeas petiti on on procedural grounds, such as untimeliness, a COA will issue only when the petit ioner shows 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 de batable whether the district court was- 3 - correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (emphasis added). B. AEDPA Statute of Limitations The Antiterrorism and Effective D eath Penalty Act of 1996 (AEDPA) establishes that a state pr isoner has a one-year period from the date his conviction becomes final in whic h to file a federal habeas petition. See 28 U.S.C. § 2244(d)(1). White’s conviction became fina l on June 22, 2007, and the limitation period began to run ninety days later, on September 20, 2007, when his time for seeking review in the United States Supreme Court expired. See id . § 2244(d)(1)(A). By the time White filed his motion for post-convict ion relief in state court, 242 days had elapsed. But the limitation period was to lled from May 19, 2008 (whe n White filed his state post-conviction motion) until April 25, 2011, when the Kansas Supreme Court denied review. See id . § 2244(d)(2). The limitation pe riod expired 123 days later, on August 11, 2011. See id . § 2244(d)(1). White filed hi s federal habeas application nearly two years la ter on July 18, 2013. 2 C. Equitable Tolling It is undisputed that White’s habeas a pplication was filed outside the one-year limitations period fo r habeas relief. However, White maintains that equitable tolling

2 White maintains July 3, 2013 should be considered the “correct” filing date because of problems getting the application filed. Whether the “correct” date is July 3 or July 18 does not matter because in ei ther instance the pet ition was filed nearly two years after the limi tation period expired.- 4 - should apply, allowing him to pro ceed despite his untimeliness. See, e.g., Holland v. Florida , 560 U.S. 631, 645 (2010) (holding “t hat § 2244(d) is subject to equitable tolling in appropriate cases”) . Only “rare and exceptiona l circumstances” permit the equitable tolling of AEDPA’s one-y ear statute of limitations. Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000) (internal quotation mark s omitted). This requires an inmate to “diligently pursu e[] his claims and demonstr ate[] that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v.
Soares , 223 F.3d 1217, 1220 (10th Cir. 2000). “An inmate bears a strong burden to show specific facts to supp ort his claim of extraordin ary circumstances and due diligence.” Yang v. Archuleta , 525 F.3d 925, 928 (10th Cir. 2008) (brackets and internal quotation marks omitted). To satis fy this burden, the prisoner must “allege with specificity the steps he took to diligently pursue his federal claims.” Id . at 930 (internal quotation marks omitted). “We re view for abuse of discretion a district court’s decision to grant or deny equitable tolling.” Al-Yousif v. Trani , ___ F.3d ___, 2015 WL 968432, *4 (10t h Cir. Mar. 6, 2015). White asks us to consider two different theories. The firs t assumes that the operative statutory deadline was August 11, 2011, for the reasons we have described above. Using this date as the deadline, White argues that the time spent in segregation and/or isolation prevented him from filing a time ly application. As part of the first theory, White al so argues for the first time on appeal, that he was “deemed incompetent” and this period of incompetency tolled the statute of- 5 - limitations. Aplt. Opening Br. at 19. Th e second theory assume s that after White filed his motion for post-conviction relief, the remaining 123 days of the limitation period did not begin to run again until late June 2013, when White says he first learned that the Kansas Supreme Court deni ed his petition for review. White cannot prevail under either theory. 1. August 11, 2011 Deadline Using August 11, 2011 as the operative deadline, White ma intained in the district court that time spen t in segregation and/or isola tion delayed his filing. He stated only that he was “a t the Larned State Hospital [from] approximately [July 2007] until around February 2012,” R. at 28, but never explained the circumstances. It was not until his opening brie f in this court that White ar gued for the first time that he “was deemed incompetent on July 14, 2007 . . . and accepted as a patient in a state mental hospital; therefore . . . all time [spent in the stat e mental hospital] should be stopped and tolled until the doc tors found me mentally f it and released me back to . . . [traditional] custody.” Aplt. Op ening Br. at 19. A lthough White did not mention “incompetence” as gr ounds for equitable tolling in the district court, we deem his general allegation of time spent in the Larned State Hospital sufficient (barely) to have preserved th e issue for appellate review. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that pro se filings should be construed liberally).- 6 - “Equitable tolling of a limitations period based on mental incapacity is warranted only in ‘exceptional ci rcumstances’ that may include an adjudication of incompetence , institutionalization for mental incapacity, or ev idence that the individual is not ‘capable of pursuing his ow n claim’ because of me ntal incapacity.” Reupert v. Workman , 45 F. App’x 852, 854 (10th Cir. 2002) (emphasis added) (quoting Biester v. Midwest Health Servs., Inc. , 77 F.3d 1264, 1268 (10th Cir. 1996)). Although White states that he was “deemed incompetent,” on July 14, 2007 and did not regain competency until February 2012, Aplt. Opening Br. at 19, there is no such evidence in the r ecord. Further, there is little, if any, in formation as to what condition or conditions caused White to be hospitalized, let alone any evidence of mental incompetence. What evidence does exist di sproves mental incompetence during the relevant time period. For example, on July 12, 2007, White filed suit under 42 U.S.C. § 1983. He prosecuted the case pro se until Ja nuary 2011 when the district court appointed counsel to represent him at the upcoming trial. See Docket, White v. Werholtz , No. 5:07-cv-03182-CM (D. Kan.). Mo re to the point, White’s generalized allegation of incompetence is wholly inadequate to su stain his burden “to show specific facts to support his claim of extraordinary circumstances.” Yang , 525 F.3d at 928 (internal quotation marks omitted). As to time sp ent in segregation and/or isolation, White’s averments demons trate that these instances occurred after the limitation period ran on August 11, 2011. See Aplt. Opening Br. at 20-21.- 7 - 2. June 2013 Deadline Under this theory, White argues that he did not receive notice that the Kansas Supreme Court had denied his petition for review until late June 2013. At that point, he sprang into action and filed his habe as application shortly thereafter. The record contains a copy of the lette r that White’s lawyer wrote to him on April 28, 2011, advising him that the petiti on for review had been denied. In the letter, the attorney also advi sed White that “[t]he statut e of limitations for federal filings are very short.” R. at 145. However, White says he never received the letter. He does allege that “from February 2012 to August 2012, [he made] numerous attempts . . . to contact [h is attorney] but got no respons e returned, so during this time[] [he] spent it filing for a clemency re quest to the governor of Kansas . . . which [was] filed in approximately April of 2012.” Id . at 253. In June 2013, more than a year after f iling his clemency request, White asked a relative to send a letter to the attorney inqu iring about the status of his petition for review. See id . In response White r eceived a letter dated J une 24 that states: “Enclosed please find a copy of the lette r that was sent to you in April, 2011 informing you that your petition for review by the Kansas Supreme Court had been denied. Unfortunately, this will likely put you outside of the fe deral time limits.” Id . at 144. 3

3 The remainder of this letter is blacked out.- 8 - Assuming for argument that the dela yed notice constitutes extraordinary circumstances, the question is whether White was diligent. “The diligence required for equitable tolling purposes is reasonable diligence.” Holland , 560 U.S. at 653 (internal quotation marks omitted). We agree with the district co urt’s conclusion that White failed to “persuasively allege diligence.” R. at 31 2. Among other things, the court noted that White “does not explain wh ether he made any e ffort to contact the Kansas Supreme Court for information on th e status of his case, does not provide a detailed explanation of his efforts to cont act his counsel, and stat es only that in the absence of a reply from counsel, he filed a pe tition for clemency.” Id . We also note that White waited until June 2013 to as k a relative to c ontact the allegedly non-responsive attorney. The district court did not abuse its discretion to deny equitable tolling. III. Conclusion We conclude that White has failed to demonstrate that jurists of reason would find debatable the district court’s conclusi on that his § 2254 petition is time-barred and not subject to equitabl e tolling. We therefore de ny White’s application for a COA and dismiss this matter. Entered for the Court
Timothy M. Tymkovich Circuit Judge