UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ARTURO ALVARADO, 

 Petitioner - Appellant, 

v. 

KEN SMITH, 

 Respondent - Appellee. 

No. 17-2145 

(D.C. No. 1:17-CV-00266-RJ-GJF) 

(D.N.M) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before KELLY, MURPHY, and MATHESON, Circuit Judges. 

_________________________________ 

 Arturo Alvarado, a New Mexico state prisoner proceeding pro se,1

 seeks a 

certificate of appealability (“COA”) to challenge the district court’s dismissal of his 

habeas application under 28 U.S.C. § 2254. The district court dismissed Mr. Alvarado’s 

application as untimely. Exercising jurisdiction under 28 U.S.C. § 1291, we deny a COA 

and dismiss the matter. 

 *

 This order is not binding precedent, except under the doctrines of law of the 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

1 Because Mr. Alvarado is proceeding pro se, we construe his filings 

liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. 

Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] 

arguments liberally; this rule of liberal construction stops, however, at the point at which 

we begin to serve as his advocate.”).

FILED 

United States Court of Appeals 

Tenth Circuit 

October 31, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

I. BACKGROUND 

On June 30, 2006, a grand jury indicted Mr. Alvarado on eight counts, including 

felony murder and criminal sexual penetration. The New Mexico state trial court 

determined that he was competent to stand trial. On April 21, 2009, Mr. Alvarado pled 

guilty to first degree murder and criminal sexual penetration. He was sentenced to life in 

prison plus 18 years. He did not file a direct appeal. On August 31, 2016, the state court 

received his petition for post-conviction relief. The court dismissed his petition on 

September 29, 2016. On October 24, 2016, he filed a petition for a writ of certiorari in 

the New Mexico Supreme Court. That appeal is still pending. 

 On February 27, 2017, Mr. Alvarado filed his first application for habeas relief 

under 28 U.S.C. § 2254 in the United States District Court for the District of New 

Mexico. He then amended his application on April 10, 2017. He argued that (1) he was 

incompetent to plead guilty due to mental incapacity, and (2) he had been denied 

effective assistance of counsel because his lawyer failed to present evidence of his 

incapacity. 

 On July 31, 2017, the district court dismissed Mr. Alvarado’s habeas application 

as untimely under § 2244(d)(1)(A) because he had filed it more than six years after his 

state conviction became final. Though Mr. Alvarado claimed he was not time-barred 

because of his mental incompetence, the court ruled that he had failed to present 

sufficient evidence to warrant equitable tolling. It also denied Mr. Alvarado’s request for 

a lawyer as moot and denied his request for a COA. Mr. Alvarado filed a timely notice of 

appeal on August 29, 2017. See Fed. R. App. P. 4(a)(1)(A). 
3 

II. DISCUSSION 

A. Legal Background 

1. Certificate of Appealability 

 A prisoner cannot appeal from a denial of a habeas application without first 

obtaining a COA. 28 U.S.C. § 2253(c)(1). A COA is appropriate “only if the applicant 

has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). 

When, as here, the district court denied a habeas application on procedural grounds, a 

COA may issue only if the applicant demonstrates (1) “that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right” 

and (2) “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). “Each 

component of [this] showing is part of a threshold inquiry, and a court may find that it 

can dispose of the application in a fair and prompt manner if it proceeds first to resolve 

the issue whose answer is more apparent from the record and arguments.” Id. at 485. 

The second component—the procedural issue—is frequently the easier one to resolve. 

Id. 

2. Statute of Limitations and Equitable Tolling 

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a oneyear statute of limitations on filing a § 2254 application. 28 U.S.C. § 2244(d)(1). This 

limitations period begins to run on “the date on which the judgment [becomes] final by 

the conclusion of direct review or the expiration of the time for seeking such review.” Id. 
4 

“[R]are and exceptional circumstances” permit the equitable tolling of AEDPA’s 

one-year statute of limitations. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) 

(quotations omitted). To qualify for equitable tolling, a petitioner must demonstrate “(1) 

that he has been pursuing his rights diligently, and (2) that some extraordinary 

circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 

631, 649 (2010) (quotations omitted). “An inmate bears a strong burden to show specific 

facts to support his claim of extraordinary circumstances and due diligence.” Yang v. 

Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (brackets and quotations omitted). 

“Equitable tolling of a limitations period based on mental incapacity is warranted 

only in exceptional circumstances that may include an adjudication of incompetence, 

institutionalization for mental incapacity, or evidence that the individual is not capable of 

pursuing his own claim because of mental incapacity.” Reupert v. Workman, 45 F. App’x 

852, 854 (10th Cir. 2002) (unpublished) (citing Biester v. Midwest Health Serv., Inc., 77 

F.3d 1264, 1268 (10th Cir. 1996)); see also O’Bryant v. Oklahoma, 568 F. App’x 632, 

636 (10th Cir. 2014) (unpublished) (explaining that federal courts will apply equitable 

tolling only in cases of “profound mental incapacity” such as when a prisoner was 

institutionalized or adjudicated mentally incompetent).2

 “Allegations of mental 

incompetence alone . . . are generally insufficient to warrant equitable tolling.” Wiegand 

v. Zavares, 320 F. App’x 837, 839 (10th Cir. 2009) (unpublished). 

 2

 Although not precedential, we find the reasoning of these unpublished 

opinions instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not 

precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 

32.1. 
5 

B. Analysis 

Reasonable jurists could not debate that the district court was correct in ruling that 

Mr. Alvarado’s § 2254 application was untimely. We agree that Mr. Alvarado’s 

application is time-barred and equitable tolling is not warranted. 

1. Timeliness of Habeas Petition 

The district court denied Mr. Alvarado’s habeas petition as untimely and therefore 

did not reach the merits of his claims. 

Mr. Alvarado’s convictions became final on May 22, 2009—30 days after the 

district court entered its judgment on April 22, 2009. See NMRA, Rule 12-201(A)(2). 

Accordingly, under 28 U.S.C. § 2244(d)(1)(A), AEDPA’s one-year statute of limitations 

period began on Friday, May 22, 2009 and ended on Saturday, May 22, 2010. See Harris 

v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011). Mr. Alvarado had until Monday, 

May 24, 2010 to file his application. See id.; Fed. R. Civ. P. 6(a). He filed his first 

habeas application on February 27, 2017 and his amended application on April 10, 2017, 

both about seven years after the statute of limitations expired. Thus—absent tolling or 

another exception to AEDPA’s time limit—we agree with the district court that his 

petition was untimely. 

2. Equitable Tolling 

Reasonable jurists could not debate that the district court was correct in 

determining that Mr. Alvarado failed to show extraordinary circumstances and due 

diligence. 
6 

Construing Mr. Alvarado’s appeal liberally, we understand him to argue that his 

mental incapacity prevented him from filing a timely appeal. He posits that his 

condition—stemming from a self-inflicted gunshot wound to the head that caused 

permanent brain damage—prevented him from understanding appeal procedures. Aplt. 

Br. at 2, 4. He claims to suffer from seizures, major depression, dementia, memory loss, 

auditory hallucinations, psychosis, bipolar disorder, paranoid schizophrenia, and mood 

swings. He also claims that he receives supplemental security income for a mental 

disability. Id. at 2. Finally, he states that he is currently being treated at the prison’s 

mental health facility. Id.

Mr. Alvarado’s evidence does not demonstrate extraordinary circumstances. He 

needs to show that he had been institutionalized for mental incapacity, judged 

incompetent, or not capable of pursuing his own claim during the period in which he 

needed to file his application—that is May 22, 2009 to May 24, 2010. See Wiegand, 320 

F. App’x at 839. First, he has not been judged incompetent. Second, he was not 

institutionalized during the relevant time. Although he states that he is currently in a 

mental health facility, he makes no claim of institutionalization during the time from May 

22, 2009 to May 24, 2010. Third, he does not provide evidence that he was incapable of 

pursuing his own claim because of mental incapacity. He claims to suffer from specific 

mental conditions such as psychosis and dementia, but he provides no evidence in 

support. In listing his conditions, he does no more than allege mental incompetence, 

which is “generally insufficient to warrant equitable tolling.” See id. (determining that 

the fact that a prisoner took antidepressant medications was insufficient to warrant 
7 

equitable tolling based on incompetency). These same points apply to the period from 

the time he was charged to his guilty plea. 

Finally, the “state trial court’s findings rejecting the competency claim in denying 

post-conviction relief may not be lightly disregarded.” Reupert, 45 F. App’x at 854. The 

federal district court correctly noted that it must afford deference to the state trial court’s 

dismissal of Mr. Alvarado’s habeas application based on the lack of record evidence 

supporting his claim of mental incompetence. 

Thus, for the foregoing reasons, we conclude that reasonable jurists would not 

debate the district court’s decision that equitable tolling is not warranted. See Slack, 529 

U.S. at 484.3

 

 3

 Nor can Mr. Alvarado avoid AEDPA’s one-year statute of limitations based 

on statutory tolling. Under 28 U.S.C. § 2244(d)(2), “[t]he time during which a 

properly filed application for State post-conviction or other collateral review with 

respect to the pertinent judgment or claim is pending shall not be counted toward any 

period of limitation.” In other words, a habeas applicant is entitled to statutory 

tolling of the deadline while pursuing state post-conviction relief. But Mr. Alvarado 

did not seek post-conviction relief in state court until August 31, 2016—six years 

after AEDPA’s deadline expired on May 24, 2010 —and thus statutory tolling does 

not save his application. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006); 

Collins v. Bear, No. 16-6339, 2017 WL 2683990, at *3 (10th Cir. 2017) 

(unpublished).
8 

III. CONCLUSION 

Mr. Alvarado filed his § 2254 application outside of the statute of limitations 

period. There are no grounds for equitably tolling the statute. We deny Mr. Alvarado’s 

request for a COA and dismiss this matter. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge