UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

GREG VAUGHN, 

 Petitioner - Appellant, 

v. 

MIKE BOLT, Warden, 

 Respondent - Appellee. 

No. 17-6200 

(D.C. No. 5:17-CV-00269-C) 

(W.D. Okla.) 

 

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 * This order and judgment is not binding precedent, except under the doctrines of 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 28, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

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