REPORT AND RECOMMENDATION

F. KEITH BALL, Magistrate Judge.

This cause is before the Court on the petition for writ of habeas corpus filed by Mack Wells, a state prisoner, and Respondent's motion to dismiss the petition as untimely. Having considered the motion and Wells's response, the undersigned recommends that the motion be granted and that the petition be dismissed with prejudice.

Petitioner was convicted in the Circuit Court of Scott County, Mississippi, of the crime of capital murder. By order dated September 28, 1995, he was sentenced to death by lethal injection. His conviction and sentence were affirmed on direct appeal, and the United States Supreme Court denied his petition for a writ of certiorari. On September 3, 1998, he filed an application for post-conviction relief (PCR) in the Mississippi Supreme Court. His PCR proceedings were stayed pending a decision by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002). After the Atkins decision, the Mississippi Supreme Court remanded Petitioner's case to the state trial court for a determination as to his mental capacity. The state court determined that Wells met the Atkins standard for mental retardation, and by order dated June 23, 2004, the court vacated his death sentence and resentenced him to a term of life imprisonment without parole. Thereafter, on June 9, 2005, the state supreme court held that the remaining issues set forth in Wells's PCR application were without merit and denied the application.

Wells filed his present § 2254 petition on June 28, 2011.1 In his petition and other filings, he argues that his sentence of life without parole is unconstitutional because he was never afforded a competency hearing and because he was denied effective assistance of counsel.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitation for petitions for writs of habeas corpus under § 2254:

28 U.S.C. § 2244(d).

Petitioner's sentencing order became final on July 23, 2004, the date on which his thirty-day period for seeking direct review expired. Petitioner had one year from that date, or until July 23, 2005, in which to file for federal habeas relief, subject to tolling for any period during which a properly-filed PCR application was pending in the state court. Because Wells's 1998 PCR application remained pending at the time of his resentencing, he is entitled to statutory tolling until June 9, 2005, the day his PCR application was denied. Thus, his one-year began to run on June 9, 2005, and his statutory period for filing for habeas relief expired one year later, on June 9, 2006. Because Wells failed to meet this deadline, his petition is untimely.

In response to the motion, Wells argues that the limitations period should not apply in his case because he is mentally ill, mentally retarded, and unable to read or write.2 Neither the Supreme Court nor the Fifth Circuit has ever applied the doctrine of equitable tolling based upon a showing of mental incompetence in a habeas case. At most, these courts have acknowledged that mental incompetency might provide a basis for tolling. In Lawrence v. Florida, 549 U.S. 327 (2007), the Court rejected the petitioner's attempt to invoke equitable tolling based upon a mental impairment, stating that "[e]ven assuming this argument could be legally credited, Lawrence has made no factual showing of mental incapacity." Id. at 337. And while the Fifth Circuit in Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), acknowledged the possibility that mental incompetence might support a claim of equitable tolling in a habeas case, it has never so held. Since Fisher, the Fifth Circuit has reiterated that equitable tolling applies principally where a habeas petitioner has been actively misled by the state about his cause of action or has been prevented in some extraordinary way from filing for relief. See Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). Wells has made no showing that he was actively misled or prevented in some extraordinary way from filing his habeas petition prior to the one-year deadline. Furthermore, he has come forward with no affidavits or other evidence to support his allegations of incapacity.3 See Smith v. Johnson, 2001 WL 43520 (5th Cir. Jan 3, 2001) (declining to apply equitable tolling where petitioner failed to verify the documents in which he claimed incompetence or to submit an affidavit). The fact that a Mississippi court has found him ineligible of the death penalty under Atkins does not, without more, establish that he was incapable of filing habeas relief in a timely manner.4

For these reasons, the undersigned recommends that the motion to dismiss be granted. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendation contained within this report and recommendation within 14 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court. 28 U.S.C. § 636; Fed. R. Civ. P. 72(b); Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).