UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ RONALD E. RING, Pe titioner - Appellant,

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

__________________ _______________ ORDER DENYING A CERTIFICATE OF APPEALABILITY AND DISMISSING THE APPEAL

__________________ _______________ Before LUCERO , MATHESON , and BACHARACH , Circuit Judges.

__________________ _______________ Mr. Ronald Ring pleaded nolo conten dere to state bu rglary charges. Years later, he learned that state law required hi m to serve 85% of his sentence before he could be co nsidered for early release. See Okla. Stat. tit. 21, § 13.1. Mr. Ring then sought habeas re lief 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 appe al and requests a certi ficate of appealability and leave to appeal in forma pauperis. We deny both requests. FILED United States Court of Appeals Tenth Circuit 

### July 18, 2016 Elisabeth A. Shumaker Clerk of Court2 I. Denial of a Certificate of Appealability Mr. Ring may appeal only if we issue a certif icate of appealability. 28 U.S.C. § 2253(c)(1 )(A). To obtain th e certificate, Mr. Ring must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). W hen a district court disposes of a habeas action as timebarred, the petitioner must show “that jurists of reason would find it debatable whether the petiti on states a valid clai m of the denial of a constitutional right and that jurists of reason would find it debatable whether the district c ourt 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 pe riod applies to state prisoners who petition for a writ of habeas corp us. 28 U.S.C. § 2244(d)(1). This lim itations period begins to run at the latest of four alternative dates. Id . Here, the latest potential start date was when Mr. Ri ng could reasonably have discovered the factual predicat e of his claims. See 28 U.S.C. § 2244(d)(1)(D). All reasonable jurists would regard that discovery as havi ng been po ssible more than one year before Mr. Ri ng initiated the habeas action.3 Mr. Ring admitted in di strict court that he had learned of the 85% requirement in 2009. That knowledge was the only f actual predicate necessary. Nonetheless, he waited rough ly five years be fore seeking any relief in state court. In these circum stances, jurists co uld not reasonably debate the district court’s conclusion that Mr. Ring’s ha beas claim is timebarred. 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 s hould have addressed the merits before addressing the statute of limitations . These arguments are not reasonably debatable. First, Mr. Ring argues that the sentence in st ate court was void. But this argument goes to th e 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 ju risdictional issue, on federal habeas.”). 1 Consequently, this ar gument does not bear on the timeliness of the habeas action. Second, Mr. Ring conte nds 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 alle ging fraud on the court, a party must show that the adversary acted wi th intent to deceive or defraud

1 This opinion is persuasi ve, but not precedential.4 the court. Robinson v. Audi Aktiengesellschaft , 56 F.3d 1259, 1267 (10th Cir. 1995)

. Mr. Ring does not pres ent any allegations or evidence of fraudulent conduct. Rather, he alleges only that he wa s 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 fr aud perpetrated on the

court. Third, Mr. Ring ar gues that he was actually innocent . When a habeas petitioner proves actual i nnocence, 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 cr ime rather than the sentence. Selsor v. Kaiser , 22 F.3d 1029, 1035-36 (10th Cir. 1994). Mr. Ring does not conte nd that he is actually i nnocent of the charge (burglary). Mr. Ring’s argument “differs in the f act that it is not based on the elements of the crim e;” his “argument is base d on the minimum amount of time to be actually served.” Appellant’s Combined Opening Brief & Application for a Certificate of Appe alability at 7. Under our precedent,

2 “Generally sp eaking, only the most egregious mi sconduct, such as bribery of a judge or members of a jury , or the fabrication of evidence by a party in which an attorney is impli cated will constitut e 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. Fo rd Motor Co. , 573 F.2d 1332, 1338 (5th Cir. 1978)).5 this argument does not allow Mr. Ring to avoi d the time bar in § 2244(d). Selsor , 22 F.3d at 1035-36. Fourth, Mr. Ring argues that the dist rict court should have addressed the merits before addressing the tim eliness issue. Bu t the respondent moved to dismiss based sole ly 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, ev en if Mr. Ring could have prevailed on the merits, he could not obtain a wr it 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 pauperi s. Because Mr. Ring’s appeal points would be fri volous, we deny this request. See Rolland v. Primesource Staffing, LLC , 497 F.3d 1077, 1079 (10th Cir. 2007).6 IV. Disposition We deny the request for a certificate of appeal ability, dismiss the appeal, and deny the requ est for leave to appeal in forma pauperis.

Entered for the Court

Robert E. Bacharach Circuit Judge