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

                       FOR THE TENTH CIRCUIT                       July 18, 2016
                       _________________________________
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
RONALD E. RING,

      Petitioner - Appellant,

v.                                                 No. 16-6060
                                            (D.C. No. 5:15-CV-01300-F)
ART LIGHTLE, Warden,                               (W.D. Okla.)

      Respondent - Appellee.


                       _________________________________

      ORDER DENYING A CERTIFICATE OF APPEALABILITY
               AND DISMISSING THE APPEAL
                 _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

     Mr. Ronald Ring pleaded nolo contendere to state burglary charges.

Years later, he learned that state law required him to serve 85% of his

sentence before he could be considered for early release. See Okla. Stat.

tit. 21, § 13.1. Mr. Ring then sought habeas relief under 28 U.S.C. § 2254,

claiming that he should have been told about this requirement when he

pleaded nolo contendere. The district court dismissed the habeas action as

time-barred.

     Mr. Ring wants to appeal and requests a certificate of appealability

and leave to appeal in forma pauperis. We deny both requests.
I.    Denial of a Certificate of Appealability

      Mr. Ring may appeal only if we issue a certificate of appealability.

28 U.S.C. § 2253(c)(1)(A). To obtain the certificate, Mr. Ring must make

“a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When a district court disposes of a habeas action as time-

barred, the petitioner must show “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 debatable

whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

II.   The district court’s ruling on timeliness is not reasonably
      debatable.

      On appeal, Mr. Ring contends that the district court erred by

dismissing his claims as time-barred. No reasonable jurist would credit that

contention.

      A one-year limitations period applies to state prisoners who petition

for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). This limitations period

begins to run at the latest of four alternative dates. Id. Here, the latest

potential start date was when Mr. Ring could reasonably have discovered

the factual predicate of his claims. See 28 U.S.C. § 2244(d)(1)(D). All

reasonable jurists would regard that discovery as having been possible

more than one year before Mr. Ring initiated the habeas action.


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      Mr. Ring admitted in district court that he had learned of the 85%

requirement in 2009. That knowledge was the only factual predicate

necessary. Nonetheless, he waited roughly five years before seeking any

relief in state court. In these circumstances, jurists could not reasonably

debate the district court’s conclusion that Mr. Ring’s habeas claim is time-

barred.

      On appeal, Mr. Ring argues that the state-court sentence was void,

that the court was defrauded, that he was actually innocent, and that the

federal district court should have addressed the merits before addressing

the statute of limitations. These arguments are not reasonably debatable.

      First, Mr. Ring argues that the sentence in state court was void. But

this argument goes to the merits of his claim. See Sherratt v. Friel, 275 F.

App’x 763, 766 n.1 (10th Cir. 2008) (unpublished) (“[T]he state court’s

jurisdiction vel non is a merits issue, not a jurisdictional issue, on federal

habeas.”). 1 Consequently, this argument does not bear on the timeliness of

the habeas action.

      Second, Mr. Ring contends that the court was defrauded. Courts can

correct judgments that were based on fraud. United States v. Williams, 790

F.3d 1059, 1071 (10th Cir. 2015). When alleging fraud on the court, a

party must show that the adversary acted with intent to deceive or defraud



1
      This opinion is persuasive, but not precedential.
                                          3
the court. Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th

Cir. 1995).

         Mr. Ring does not present any allegations or evidence of fraudulent

conduct. Rather, he alleges only that he was not told that his sentence was

subject to the 85% requirement. But no reasonable jurist could challenge

this conduct as a fraud on the court. 2 Accordingly, Mr. Ring is not entitled

to avoid the statute of limitations based on a fraud perpetrated on the

court.

         Third, Mr. Ring argues that he was actually innocent. When a habeas

petitioner proves actual innocence, the limitations period does not apply.

McQuiggin v. Perkins, __ U.S. __, 133 S. Ct. 1924, 1931-33 (2013).

Innocence must be based on the underlying crime rather than the sentence.

Selsor v. Kaiser, 22 F.3d 1029, 1035-36 (10th Cir. 1994).

         Mr. Ring does not contend that he is actually innocent of the charge

(burglary). Mr. Ring’s argument “differs in the fact that it is not based on

the elements of the crime;” his “argument is based on the minimum amount

of time to be actually served.” Appellant’s Combined Opening Brief &

Application for a Certificate of Appealability at 7. Under our precedent,

2
      “Generally speaking, only the most egregious misconduct, such as
bribery of a judge or members of a jury, or the fabrication of evidence by a
party in which an attorney is implicated will constitute a fraud on the
court. Less egregious misconduct . . . will not ordinarily rise to the level of
fraud on the court.” Weese v. Schukman, 98 F.3d 542, 552-53 (10th Cir.
1996) (emphasis omitted) (quoting Rozier v. Ford Motor Co., 573 F.2d
1332, 1338 (5th Cir. 1978)).
                                           4
this argument does not allow Mr. Ring to avoid the time bar in § 2244(d).

Selsor, 22 F.3d at 1035-36.

       Fourth, Mr. Ring argues that the district court should have addressed

the merits before addressing the timeliness issue. But the respondent

moved to dismiss based solely on the limitations issue; the merits had not

yet been briefed. Thus, the district court naturally addressed timeliness as

the only issue to be decided. Indeed, even if Mr. Ring could have prevailed

on the merits, he could not obtain a writ of habeas corpus if the habeas

action had been untimely. See 28 U.S.C. § 2244(d)(1). As a result, the

district court did not err in deciding the timeliness issue before considering

the merits.

       For these reasons, none of Mr. Ring’s appeal points are reasonably

debatable.

III.   In Forma Pauperis

       Mr. Ring seeks leave to appeal in forma pauperis. Because Mr.

Ring’s appeal points would be frivolous, we deny this request. See Rolland

v. Primesource Staffing, LLC, 497 F.3d 1077, 1079 (10th Cir. 2007).




                                         5
IV.   Disposition

      We deny the request for a certificate of appealability, dismiss the

appeal, and deny the request for leave to appeal in forma pauperis.



                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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