Ring v. Lightle , 655 F. App'x 657 ( 2016 )

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.
2
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
6