                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                              FOR THE TENTH CIRCUIT                         February 28, 2018

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 GREG VAUGHN,

               Petitioner - Appellant,
                                                              No. 17-6200
 v.                                                    (D.C. No. 5:17-CV-00269-C)
                                                              (W.D. Okla.)
 MIKE BOLT, Warden,

               Respondent - Appellee.


                               ORDER AND JUDGMENT*


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


       Petitioner Greg Vaughn, an Oklahoma state prisoner appearing pro se, seeks a

certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2254

petition as time-barred. In dismissing Petitioner’s application, the district court failed to

consider Petitioner’s arguments that his claims of incompetence and fraud on the court

cannot be time-barred under this court’s precedents. We therefore grant the request for a

certificate of appealability and reverse and remand this case to the district court to

address these arguments.

       In January 2012, Petitioner pled guilty in two cases in Grady County, Oklahoma

for possession of controlled dangerous substance in violation of Okla. Stat. Ann. tit. 63, §

       *
        This order and judgment is not binding precedent, except under the doctrines of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.
2-402 (West 2016). Petitioner filed a motion for judicial review in both cases, which was

denied. Petitioner then filed a motion requesting an amended judgment and sentence to

address the confusion within the Oklahoma Department of Corrections concerning his

concurrent sentences. The state court entered an order nunc pro tunc to reflect the

correction. On February 12, 2014, Petitioner filed an application for post-conviction

relief in both Grady County cases, which the state court denied. Petitioner appealed to

the Oklahoma Court of Criminal Appeals (OCCA) on July 28, 2014, which dismissed the

appeal as untimely. He then filed a second application for post-conviction relief for the

Grady County cases, which was also denied. The OCCA affirmed the denial.

       On March 10, 2017, Petitioner filed his pro se § 2254 habeas application in the

district court, arguing that: (1) he was incompetent at the time of both his plea and his

sentencing; (2) there was “fraud on the court” because the arresting officer lied in his

probable cause arrest affidavit; and (3) he was entitled to relief based on cumulative

error. In an eleven-page Report and Recommendation (R&R), the magistrate judge

recommended denying the § 2254 petition as untimely. The district court adopted the

R&R and dismissed the habeas application as time-barred. Petitioner now appeals this

dismissal based on his incompetence and fraud arguments.

       Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a habeas

applicant has a one-year limitation period in which to file a § 2254 action, which is

triggered by one or more of the subsections under 28 U.S.C. § 2244(d)(1). The

magistrate judge, and later the district court, determined that Petitioner’s one-year habeas

clock began to run on “the date on which the judgment became final by the conclusion of

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direct review,” which occurred ten days after Petitioner’s plea on January 27, 2012. (R.

at 218 (citing 28 U.S.C. § 2244(d)(1)(A).) Absent statutory or equitable tolling,

Petitioner’s statute of limitations expired on January 28, 2013.

       As the magistrate judge explained, the AEDPA limitations period is tolled while a

properly filed application for state post-conviction or other collateral review regarding

the pertinent judgment or claim is pending. See 28 U.S.C. § 2244(d)(2). “An application

is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable

laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis

omitted); see also Robinson v. Golder, 443 F.3d 718, 720 (10th Cir. 2006). The

magistrate judge and district court determined that Petitioner’s petition for judicial review

did not toll the habeas limitations period because Petitioner failed to obtain the consent of

the Oklahoma County District Attorney before filing his petition, as required under Okla.

Stat. Ann. tit. 22, § 982a (West 2010).

       Citing Williams v. Beck, 115 F. App’x 32 (10th Cir. 2004), the magistrate judge

and district court further rejected Petitioner’s claim that the one-year habeas limitations

period started on August 8, 2013, “the day the trial court entered an Amended Nunc Pro

Tunc Order clarifying how his sentences were to be served,” because this was not part of

the direct review process. (R. at 221-22.) The magistrate judge and district court also

concluded that Petition’s applications for post-conviction relief did not toll the AEDPA

limitations period, as both applications were filed after the time period had already

expired. Lastly, the magistrate judge and district court determined that Petitioner was not

entitled to equitable tolling because he presented “no particular argument” on this point

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beyond a vague assertion that he had “diligently pursued his rights.” (R. at 224-25.)

Based on this analysis, the district court adopted the magistrate judge’s recommendation

and dismissed Petitioner’s March 10, 2017 habeas petition as untimely.

       Petitioner argued before the district court and again on appeal that his claims of

incompetence and fraud on the court fall within exceptions to the general one-year statute

of limitations. In support of this position, Petitioner cited Sena v. N.M. State Prison, 109

F.3d 652 (10th Cir. 1997), in which this court noted that where there is a “conflation of

cause (here incompetence) and prejudice in the substantive due process claim [that the

state allowed him to enter a guilty plea while mentally incompetent] . . . procedural

default does not apply.” Id. at 654. Yet, the magistrate judge and the district court did

not address Petitioner’s legal position or the underlying evidence he provided to support

his substantive due process claim that he was incompetent when he entered his guilty

plea. Petitioner also asserted that there is no AEDPA statute of limitation for bringing a

claim of fraud upon the court in a § 2254 petition, since “a decision produced by fraud

upon the court is not in essence a decision at all, and never becomes final.” United States

v. Williams, 790 F.3d 1059, 1071 (10th Cir. 2015) (quoting Kenner v. Comm’r, 387 F.2d

689, 691 (7th Cir. 1968)); see also Fed. R. Civ. P. 60(d)(3). The magistrate judge and

district court similarly did not address this legal argument or Petitioner’s related evidence

allegedly showing that the arresting officer lied in his report. We are persuaded that

reasonable jurists could debate whether the district court erred in dismissing the petition

as time-barred without considering these arguments and authorities.



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       Where the district court denies a habeas petition on procedural grounds, we will

grant a certificate of appealability if the petitioner shows that reasonable jurists would

find debatable (1) whether the procedural ruling was correct, and (2) whether the petition

states a valid claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S.

473, 484 (2000). However, when the merits of the underlying constitutional claims have

not been addressed by the district court or briefed on appeal, “our review is limited,” and

we “only take a quick look at the federal habeas petition to determine whether [the

petitioner] has facially alleged the denial of a constitutional right.” Gibson v. Klinger,

232 F.3d 799, 802-03 (10th Cir. 2000) (internal quotation marks and brackets omitted).

In this case, our quick look at the habeas petition persuades us that Petitioner has facially

alleged the denial of a constitutional right, although we express no opinion as to the

ultimate legal and factual merits of his claims. We are also persuaded that reasonable

jurists could debate the correctness of the district court’s procedural ruling, and,

moreover, that Petitioner’s arguments that his claims withstand the habeas limitations

period would best be addressed by the district court in the first instance.

       We accordingly GRANT Petitioner’s request for a certificate of appealability and

REVERSE and REMAND for further proceedings consistent with this order and

judgment. Petitioner’s motion to proceed in forma pauperis on appeal is GRANTED.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge


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