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 CERTIFIC ATE 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 (“C OA”) 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 jurisdic tion under 28 U.S.C. § 1291, we deny a COA and dismiss the matter.

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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 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 cons truction 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 Court2 I. BACKGROUND On June 30, 2006, a grand jury indicted Mr. Alvarado on eight counts, including felony murder and criminal sexual penetra tion. The New Mexico state trial court determined that he was compet ent 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 re lief. The court dismissed his petition on September 29, 2016. On Octo ber 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 file d 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 counse l 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 M r. Alvarado claimed he was not time-barred because of his mental incomp etence, the court ruled that he had failed to present sufficient evidence to warrant eq uitable tolling. It also deni ed 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 Augu st 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 th e 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 demonstrat es (1) “that jurists of reason would find it debatable whether the petition stat es 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 appare nt from the record and arguments.” Id . at 485. The second component—the proc edural issue—is frequently th e 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 judgm ent [becomes] final by the conclusion of direct review or the expira tion 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 qua lify for equitable tolling, a pe titioner must demonstrate “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way an d prevented timely filing.” Holland v. Florida , 560 U.S. 631, 649 (2010) (quotations omitted). “An in mate bears a strong burden to show specific facts to support his claim of extraordin ary 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 ba sed on mental incapacity is warranted only in exceptional circumstances that may include an adjudicatio n of incompetence, institutionalization for mental incapacity, or ev idence 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) (unpublishe d) (explaining that federal courts will apply equitable tolling only in cases of “profound mental incapacity” such as when a prisoner was institutionalized or adjudica ted mentally incompetent). 2 “Allegations of mental incompetence alone . . . are generally insu fficient to warrant equitable tolling.” Wiegand
v. Zavares , 320 F. App’x 837, 839 (10t h Cir. 2009) (unpublished).

2 Although not precedential, we find the reasoning of these unpublished opinions instructive. See 10th Cir. R. 32.1 (“Unpu blished decisions are not precedential, but may be cited fo r 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 untim ely. We agree that Mr. Alvarado’s application is time-barred and eq uitable 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. 20 11). 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 a nd 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 ci rcumstances and due diligence.6 Construing Mr. Alvarado’s appeal liberally , we understand him to argue that his mental incapacity prevented him from fili ng a timely appeal. He posits that his condition—stemming from a self-inflicted guns hot wound to the head that caused permanent brain damage—prevented him fro m understanding appeal procedures. Aplt. Br. at 2, 4. He claims to suffer from seiz ures, 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 demonstrat e extraordinary circumstances. He needs to show that he ha d been institutionalized for mental incapacity, judged incompetent, or not capable of pursuing his own claim dur ing 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. Th ird, he does not provide evidence that he was incapable of pursuing his own claim because of mental inca pacity. He claims to suffer from specific mental conditions such as psychosis and de mentia, 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 warrant7 equitable tolling based on incompetency). Th ese 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 mu st afford deference to the state trial court’s dismissal of Mr. Alvarado’s habeas applicati on based on the lack of record evidence supporting his claim of mental incompetence. Thus, for the foregoing reas ons, we conclude that reas onable jurists would not debate the district court’s decision th at 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 othe r collateral review with respect to the pertinent judgm ent or claim is pending sha ll not be counted toward any period of limitation.” In other words, a habeas applicant is entitled to statutory tolling of the deadline while pursuing stat e post-conviction reli ef. But Mr. Alvarado did not seek post-conviction relief in st ate 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, 71 4 (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 to lling 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