SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). United States District Robin J. Cauthron has re-referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Respondent moves for dismissal based on untimeliness and has filed a brief in support. (ECF Nos. 37 & 38). For the reasons set forth herein, it is recommended that Respondent's motion be GRANTED.

I. PROCEDURAL BACKGROUND

On January 17, 2012, Petitioner entered a guilty plea in two Grady County District Court cases—Case Nos. CF-2010-94 & CF-2010-216. (ECF Nos. 1:1, 1-1, 1-2, 1-3). In Case No. CF-2010-94, Petitioner received a sentence of 5 years incarceration. (ECF No. 1-1). In Case No. CF-2010-216, the court sentenced Petitioner to a 5-year suspended sentence and 10 years imprisonment. (ECF No. 1-2). The 5-year sentence in Case No. CF-2010-94 was to run consecutive to the 10-year sentence imposed in Case No. CF-2010-216. (ECF Nos. 1-1; 1-2). According to Petitioner, the sentences were "wrongly structured" resulting in a 20-year total sentence instead of a 15-year total sentence, for both cases. (ECF No. 1:1-2).

Petitioner did not file a motion to withdraw the plea, but on October 10, 2012, he filed a Motion for Judicial Review in both cases, pursuant to 22 O.S. § 982a. (ECF No. 9-2). On October 25, 2012, the Grady County District Court denied the motion. (ECF No. 9-3).

On March 20, 2013, Petitioner filed a motion in Grady County District Court requesting an Amended Judgment and Sentence. (ECF No. 9-10). According to Petitioner, the Oklahoma Department of Corrections had ordered the 10- and 5- year sentences in Case Nos. CF-2010-94 and CF-2010-216 to run consecutively to one another, and concurrent with a sentence imposed in Stephens County Case No. CF-2011-106, which had not yet started to run. (ECF No. 9-10). The sentences in the Grady County cases were supposed to run concurrent with a different Stephens County Case, Case No. CF- 2009-320, which had already commenced. (ECF No. 9-10). Because the 2011 Stephens County case would not commence for another 5 years, the result was that Mr. Vaughn would have to serve 5 more years on the Grady County cases. (ECF No. 9-10). The Grady County District Court recognized the error and on June 3, 2013, the court entered an Order Nunc Pro Tunc to reflect that the terms imposed in the Grady County cases would run concurrent with both Stephens County cases. On August 8, 2013, the district court entered an Amended Order Nunc Pro Tunc which also reflected this change. (ECF No. 9-11). Neither the Order nor the Amended Order modified Petitioner's original sentences in the Grady County cases, but instead clarified how the sentences were to be executed and ensured that Petitioner would not have to serve any additional time.

Mr. Vaughn also filed two Applications for Post-Conviction Relief. He filed the first application in Grady County District Court on February 12, 2014. (ECF No. 9-4). The district court denied relief on May 22, 2014. (ECF No. 9-5). On August 15, 2014, the Oklahoma Court of Criminal Appeals (OCCA) declined jurisdiction of Petitioner's appeal from the district court's ruling because the appeal was untimely. (ECF No. 9-6). Mr. Vaughn filed a second Application for Post-Conviction Relief in Grady County District Court on September 15, 2014. (ECF No. 9-7). The district court denied relief on September 20, 2016, and the OCCA affirmed the denial on December 16, 2016. (ECF Nos. 9-8; 9-9).

On March 10, 2017, Mr. Vaughn filed the instant habeas petition. (ECF No. 1). As grounds for relief, Petitioner alleged:

1. Procedural and substantive due process claims related to his competency,

2. "Fraud on the Court" in the form of an officer purposefully placing misinformation in the probable cause affidavit which led to Petitioner's arrest and ultimate conviction, and

3. Cumulative error.

Mr. Vaughn appealed, and the Tenth Circuit reversed and remanded to the District Court, for consideration of Petitioner's arguments that his claims of incompetency and fraud fell within exceptions to the one-year habeas statute of limitations. (ECF No. 26). Following the remand, Judge Cauthron re-referred the matter to the undersigned to consider Petitioner's arguments in accordance with the Tenth Circuit's Order. (ECF No. 31). Respondent has once again filed a Motion to Dismiss, arguing that the Petition is untimely. (ECF No. 37).

II. CLAIMS BEFORE THE COURT

As stated, in his habeas petition, Mr. Vaughn asserted both substantive and procedural competency claims. (ECF No. 1:8-10). The Tenth Circuit has recognized that "competency claims can raise issues of both substantive and procedural due process." Walker v. Att'y Gen., 167 F.3d 1339, 1343 (10th Cir. 1999). "A procedural competency claim is based upon a trial court's alleged failure to hold a competency hearing, or an adequate competency hearing, while a substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent." Lay v. Royal, 860 F.3d 1307, 1314 (10th Cir. 2017) (citation omitted).

Although Petitioner raised both types of competency claims in his Petition, his request for a Certificate of Appealability (COA) to the Tenth Circuit asserted only: (1) a substantive competency claim and (2) fraud on the court. (ECF No. 38-1:6-11). In doing so, Petitioner expressly stated that he was no longer pursuing his claim of cumulative error. (ECF No. 38-1:3). In addition, although not expressly discussed, the Court should also conclude that Mr. Vaughn has abandoned his procedural competency claim by failing to raise it in the COA. See Milton v. Miller, 812 F.3d 1252, 1263, n. 16 (10th Cir. 2016) (noting that the Court need not consider a claim which has been abandoned in the request for a COA).

Thus, at this juncture, the claims before the Court concern only Mr. Vaughn's claims of substantive competency and fraud on the court. Respondent has filed a Motion to Dismiss and argues: (1) neither claim is timely because the Petition was filed after the expiration of the limitations period as set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA) and (2) Petitioner is not entitled to tolling and cannot satisfy any exception to the AEDPA statute of limitations. (ECF No. 38).

III. AEDPA LIMITATIONS PERIOD

The AEDPA establishes a one-year limitations period for state prisoners to seek federal habeas relief, subject to several specific exceptions. 28 U.S.C. § 2244(d). In the ordinary case, the clock starts when the state court judgment becomes final on direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). However, the limitations period is tolled in cases where: (1) state action unlawfully impeded the prisoner from filing his habeas petition, (2) the prisoner asserts a constitutional right newly recognized by the Supreme Court and made retroactive to collateral cases, or (3) the factual predicate for the prisoner's claim could not previously have been discovered through due diligence. 28 U.S.C. § 2244(d)(1)(B)-(D). The statute also expressly tolls the limitations period during the pendency of a properly filed application for state collateral relief. Id. at § 2244(d)(2).

In addition to those statutory tolling provisions, the Supreme Court has held that AEDPA's one-year limitations period may be tolled for equitable reasons if the petitioner can show: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649-650 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Finally, the United States Supreme Court has recognized the existence of a fundamental "miscarriage of justice" exception to 28 U.S.C. § 2244(d) when a habeas prisoner makes a credible showing of actual innocence. McQuiggin v. Perkins, 569 U.S. 1924 (2013). But "tenable actual innocence gateway pleas are rare," as a habeas petitioner "'must show that it is more likely than not that no reasonable juror would have convicted the petitioner in light of the new evidence.'" Id. at 1928, 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Proof of reasonable diligence is not a threshold requirement for the actual innocence exception, but "[u]nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing." Id.

IV. DATE ON WHICH PETITIONER'S CONVICTION BECAME FINAL

Mr. Vaughn has not alleged tolling under the provisions set forth in 28 U.S.C. § 2244(d)(1)(B)-(D). Thus, under 28 U.S.C. § 2244(d)(1)(A), Mr. Vaughn's limitations period began to run from the date on which the conviction became final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Petitioner asserts that "the Judgement and Sentences in this case did not become final until August 8, 2013"—the day that the trial court entered the Amended Nunc Pro Tunc Order clarifying how his sentences were to be served. See ECF No. 1:6. Under this theory, Petitioner contends that his one-year limitations period started on August 8, 2013. (ECF No. 1:6). The Tenth Circuit Court of Appeals has rejected this argument in Williams v. Beck, 115 F. App'x 32 (10th Cir. 2004).

In Williams, a habeas petitioner argued that his conviction had become final on the date of an amended judgment and sentence following Petitioner's request for a sentence modification. Williams, 115 F. App'x at 33. The Tenth Circuit Court of Appeals rejected the argument because: (1) the motion for sentence modification was not considered part of the direct review process and (2) the original judgment and sentence (or the events surrounding it) "furnished the predicate of [petitioner's] habeas claims-not the amended judgment and sentence resulting from the sentence modification." Id.

Williams v. Beck is persuasive in the instant case. Here, the Court should conclude that the August 8, 2013 Amended Nunc Pro Tunc Order entered in response to Plaintiff's Motion Requesting an Amended Judgment and Sentence was not part of the direct appeal review process for purposes of the AEDPA. In addition, the Order did not change Petitioner's original Judgment and Sentence, rather it clarified how the sentences were to be carried out—concurrent with sentences imposed in two Stephens County cases, which would ensure that Petitioner would not serve any additional time. See supra; ECF No. 9-10 & 9-11. Finally, the August 8, 2013 order had no bearing on Petitioner's habeas claims, rather the factual predicate of the claims stemmed from the original judgment and sentence. Accordingly, the Court should reject Mr. Vaughn's claim that his sentence became final on August 8, 2013 for purposes of 28 U.S.C. § 2244(d)(1)(A).

Because Petitioner did not appeal from the January 17, 2012 plea, his conviction became final ten days later on January 27, 2012. See Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). Without tolling, Petitioner's statute of limitations expired on January 28, 2013, but Mr. Vaughn filed the habeas petition on March 10, 2017, over four years later. (ECF No. 1:1). Thus, under § 2244(d)(1)(A) the Petition is untimely absent statutory or equitable tolling, or an exception to the AEDPA.

V. STATUTORY TOLLING

As stated, the AEDPA limitations period is tolled while a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. See 28 U.S.C. § 2244(d)(2). In Wall v. Kholi, 131 S.Ct. 1278 (2011), the United States Supreme Court defined "collateral review" as "judicial review of a judgment in a proceeding that is not part of direct review." Wall v. Kholi, 131 S.Ct. at 1281-82. Three state court pleadings are relevant to the issue of statutory tolling—Mr. Vaughn's Petition for Judicial Review filed pursuant to 22 O.S. § 982a and two Applications for Post-Conviction relief. But none of these pleadings entitle Petitioner to statutory tolling.

A. § 982 Petition for Judicial Review

On October 10, 2012, Mr. Vaughn filed a Petition for Judicial Review pursuant to 22 O.S. § 982a. See ECF No. 9-2. Under Wall, The Court may assume that the State Petition is considered a type of "collateral review" subject to tolling under 28 U.S.C. § 2244(d)(2). See Doby v. Dowling, 632 F. App'x 485, 488 (10th Cir. 2015) (assuming § 982a motion tolls the limitations period). However, in order for the State Petition to toll the limitations period under § 2244(d)(2), it must have been "properly filed." See 28 U.S.C. § 2244(d)(2).

The Supreme Court has held that "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). See also Robinson v. Golder, 443 F.3d 718, 720 (10th Cir. 2006) (stating that an application is "properly filed" if it satisfies the state's requirements for filing such a pleading); Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (stating that a "properly filed" application complies with filing requirements including: "(1) the place and time of filing; (2) the payment or waiver of any required filing fees; (3) the obtaining of any necessary judicial authorizations that are conditions precedent to filing, such as satisfying any filing preconditions that may have been imposed on an abusive filer; and (4) other conditions precedent that the state may impose upon the filing of a post-conviction motion").

In the instant case, Mr. Vaughn's State Petition was governed by 22 O.S. § 982a (2010 Supp.) which provides:

Any time within twelve (12) months after a sentence is imposed or within twelve (12) months after probation has been revoked, the court imposing sentence or revocation of probation may modify such sentence or revocation by directing that another sentence be imposed, if the court is satisfied that the best interests of the public will not be jeopardized; provided, however, the court shall not impose a deferred sentence. This section shall not apply to convicted felons who have been in confinement in any state prison system for any previous felony conviction during the ten-year period preceding the date that the sentence this section applies to was imposed. Further, without the consent of the district attorney, this section shall not apply to sentences imposed pursuant to a plea agreement.

In the Order Declining Petitioner's § 982a motion, the district court cited the condition precedent, giving it emphasis by underlining that portion of the statute, and then declining to even consider the Petitioner's request. See ECF No. 9-3 ("Modifications pursuant to a prior plea bargain must be approved by the District Attorney before the Court will consider the application."). The import of the district court's order is that it had declined Petitioner's request because he had not received the consent of the district attorney prior to filing the motion. Because the condition precedent had not been met, the Court should conclude that the § 982a petition was not "properly filed" for purposes of statutorily tolling the habeas limitations period.

B. Two Applications for Post-Conviction Relief

As stated, a properly filed Application for Post-Conviction relief can also statutorily toll the AEDPA's limitations period. See 28 U.S.C. § 2244(d)(2). Here, Mr. Vaughn filed two Applications for Post-Conviction relief, one on February 12, 2014 and one on September 15, 2014. (ECF Nos. 9-4 & 9-7). But Petitioner is not entitled to any period of tolling for either application because both were filed after the AEDPA limitations period had already expired on January 28, 2013. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Hubler v. Ortiz, 190 F. App'x 727, 729 (10th Cir. 2006) ("[A] petition for post-conviction relief filed in state court after the limitations period has expired no longer serves to toll it.").

C. Summary

The Court should conclude that Mr. Vaughn's conviction became final on January 27, 2012, with his AEDPA limitations period expiring one year later, on January 28, 2013. See supra. Accordingly, unless equitable tolling is applicable, or an exception to the AEDPA applies, the instant petition is untimely.

VI. EQUITABLE TOLLING

As stated, the United States Supreme Court has held that AEDPA's one-year limitations period may be tolled for equitable reasons if the petitioner can show: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649-650 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The Tenth Circuit Court of Appeals has recognized that "equitable tolling may be appropriate where there is adequate proof of incompetence." Reupert v. Workman, 45 F. App'x 852, 854 (10th Cir. 2002). "Equitable tolling of a limitations period based on mental incapacity is warranted only in 'exceptional circumstances' that may include an adjudication of incompetence, institutionalization for mental incapacity, or evidence that the individual is not 'capable of pursing his own claim' because of mental incapacity." Id. (quoting Biester v. Midwest Health Serv., Inc., 77 F.3d 1264 (10th Cir. 1996)); see also Del Rantz v. Hartley, 577 F. App'x 805, 810 (10th Cir. 2014) (noting that "mental impairment is not per se a reason to toll a statute of limitations" and that "federal courts equitably toll the limitations period only when there is a severe or profound mental impairment, such as that resulting in institutionalization or adjudged mental incompetence"). "Allegations of mental incompetence alone . . . are generally insufficient to warrant equitable tolling." Wiegand v. Zavares, 320 F. App'x 837, 839 (10th Cir. 2009).

Mr. Vaughn alleges he is entitled to equitable tolling based on mental incompetence. (ECF No. 43:17). The Court should disagree.

In support of his claim of incompetence, Mr. Vaughn relies on:

• Pages from a transcript of Mr. Vaughn's sentencing hearing where his attorney had stated, on the record, that he had prepared a memorandum which listed 23 places where Mr. Vaughn had sought help for "an addiction problem;"

• A psychological report prepared by licensed professional counselor, Dr. Richard Kishur for the period of November 10, 2010 through January 27, 2011, which Petitioner believes "show[ed] [he] was suffering from PTSD;"

• A letter from licensed psychologist Dr. Karen Lashley dated June 26, 2012 which stated that when she treated Mr. Vaughn between 2003 and 2004, she had diagnosed him with Post-Traumatic Stress Disorder;

• A letter from licensed professional counselor Deb Brantley who had counseled Mr. Vaughn between November 2006 and June 2008, who noted her belief that Petitioner suffered from PTSD related to his son's death; and

• A letter from family practitioner Dr. Miguel Sabedra, who had treated Mr. Vaughn between 1990 and 2004 for "multiple episodes of depression," which Mr. Vaughn asserts "shows that he . . . was suffering from PTSD."

For two reasons, Mr. Vaughn's reliance on this evidence is insufficient to warrant equitable tolling based on mental incompetence.

First, none of the evidence is temporally relevant to Petitioner's claim. Whether the limitation period for federal habeas purposes should be tolled for Petitioner based on his claim of incompetency depends on whether he had a mental impairment between January 27, 2012 (when the statutory limitation period began to run) and January 28, 2013 (when the statutory limitation period expired). Shoulders v. Dinwiddie, No. CIV-06-890-C, 2007 WL 275977, at *8 (W.D. Okla. Jan. 26, 2007). If Petitioner was actually incompetent during all or a portion of the statutory limitation period, equitable tolling of the limitation period is warranted for the period of incompetency. Id.

The pages from Mr. Vaughn's sentencing transcript refer to a memo written by Petitioner's attorney which allegedly listed 23 places Petitioner had sought treatment for "an addiction problem." (ECF No. 1-7:2). But proof of an "addiction problem" which was allegedly treated 23 times on unspecified dates does not prove mental incompetence during the limitations period.

Next, although Dr. Kishur performed his psychological evaluation while Petitioner was in the Grady County Detention Center, Dr. Kishur notes that the report spans the period of time between November 17, 2010 and January 27, 2011, which pre-dates the limitations period. (ECF No. 1-15). Likewise, although Dr. Lashley's letter was dated June 26, 2012 (during the limitations period), the psychologist stated that she treated Petitioner during 2003-2004, nearly a decade prior to the relevant period. (ECF No. 1-16). Similarly, Dr. Brantley's letter stated she had provided counseling sessions to Mr. Vaughn between November 2006 and June 2008, well before the relevant period. (ECF No. 1-17).

Finally, in Dr. Sabedra's letter, dated December 7, 2015, the physician stated that he had last treated Petitioner in 2004, when the family practitioner referred Mr. Vaughn to a psychologist. (ECF No. 1-18). Petitioner alleges that the date of Dr. Sabedra's letter indicates that his mental incompetency "envelopes the time before sentencing date of Jan. 17, 2012 [and] extends until Dec. 7, 2015, which clearly shows the Petitioner was incompetent and suffering from PTSD, in these time frames." (ECF No. 43:7). Petitioner is wrong. Dr. Sabedra clearly states that his treatment of Mr. Vaughn ended in 2004-approximately eight years prior to the limitations period.

Second, the evidence upon which Petitioner relies is insufficient to warrant equitable tolling based on mental incompetence. Mr. Vaughn repeatedly states and heavily relies on allegations that he suffers from PTSD as a basis to support his claim of mental incompetence. For example, Petitioner alleges that Dr. Kishur's report and Dr. Sabedra's letter showed that Petitioner was suffering from PTSD. (ECF No. 1:4). But Dr. Kishur himself never made that diagnosis. Instead, Dr. Kishur stated that his review of relevant records for Petitioner showed that Dr. Sabedra had diagnosed Petitioner with PTSD in November 2004. (ECF No. 1-15:2). However, the evidence from Dr. Sabedra which Petitioner presents to the Court shows that Dr. Sabedra had noted that a different physician—a psychologist—had diagnosed petitioner with PTSD. (ECF No. 1-18).

Although Petitioner correctly notes that Dr. Lashley and Dr. Brantley had diagnosed and/or treated Petitioner for PTSD, the Tenth Circuit has held that this type of evidence is insufficient to warrant equitable tolling. See ECF No. 1-16; O'Bryant v. Oklahoma, 568 F. App'x 632, 636 (10th Cir. 2014) (affirming district court's rejection of equitable tolling argument for mental incompetence based on the petitioner's allegations that he had been treated for PTSD); Shoulders v. Dinwiddie, at *10 (rejecting habeas petitioner's claim for equitable tolling based on mental incompetence because "Petitioner has not presented any evidence . . . that he was incompetent at the time of the plea and remained incompetent during and after the statutory limitation period").

Further proof weighing against Mr. Vaughn's allegations of equitable tolling due to mental incompetence lies in the fact that he was quite litigious both during and after the limitations period. During the limitations period, Petitioner filed a Motion for Judicial Review of his sentence in state court and although he contends that his PTSD which "extend[ed] to . . . 2015" rendered him mentally incompetent through that period, he was quite litigious throughout 2015. In one of his underlying state court cases alone, he filed two Applications for Post-Conviction Relief (in one of which he filed a "supplemental motion" and a separate "Offer of Proof"), a Motion for an Evidentiary Hearing, a supplement to that motion, a Writ of Coram Nobis, a Writ of Mandamus, a Motion to Withdraw his Guilty Plea, a Motion to Vacate or Modify his Judgment, an addendum to that motion, a Motion for Response, an addendum to that motion, a second Motion for Evidentiary Hearing, a Petition for a Writ of Habeas Corpus, and a Motion for an Order Nunc Pro Tunc. This evidence would suggest the absence of mental incompetence. See Smith v. Saffle, 28 F.App'x 759 (10th Cir. 2001) (finding equitable tolling based on mental incapacity is not available "where the party urging tolling has been able to pursue legal action during the period of his or her alleged incapacity").

Based on the forgoing, the Court should conclude that there is insufficient proof of incompetence which would qualify as an "extraordinary circumstance" to justify equitable tolling for Mr. Vaughn.

VII. PETITIONER'S REMAINING ARGUMENTS

In addition to tolling, Petitioner argues that his two grounds for relief—substantive incompetence and "fraud on the court"—are timely based on other exceptions to the AEDPA. In support of his claim that his competency claims are timely, Petitioner relies on the Tenth Circuit's holding in Sena v. New Mexico State Prison. Regarding his "fraud on the court" claim, Petitioner argues this type of claim is not subject to the AEDPA's statute of limitations based on: (1) the Court's inherent power in equity to address this type of claim regardless of the AEDPA and (2) the "miscarriage of justice exception." The Court should reject Mr. Vaughn's arguments.

A. Substantive Incompetence

In the Petition, Mr. Vaughn stated:

The Petitioner also cites Sena v. N.M. State Prison, 109 F.3d 652, 645-655 (10^th Cir. 1997), ¶ 11 determined, " . . . there can be no resolution of the fundamental due process issue he raises." REVERSED AND REMANDED.

In Sena, a state inmate had filed a habeas petition alleging, in part, that the state trial court erred by not granting him a competency hearing prior to the entry of his plea. Sena v. New Mexico State Prison, 109 F.3d 652, 653 (10th Cir. 1997). The district court dismissed the petition on the basis of procedural default because the petitioner had failed to raise the claim to the state's highest court. Id. Ultimately, however, the Circuit Court held that due to the nature of the claim—that the State had committed a fundamentally unfair act, depriving the petitioner of his substantive right to due process—he could raise the claim in federal court despite the state court procedural default. Id. at 654. After concluding that the claimed could be raised, the Tenth Circuit concluded that the record had contained sufficient evidence which raised a doubt as to the petitioner's competency when he had pled guilty. Id. at 655. Accordingly, the Court remanded to the district court to make a factual determination of the petitioner's competency at the time he pled guilty—resolution of which would be necessary in adjudicating his habeas claim. Id.

Sena sheds no light on the issue of whether Mr. Vaughn's substantive competency claim is timely or meritorious. The issue in Sena involved allowance of a substantive incompetency claim despite a procedural default on the claim in state court. But at this juncture in the instant case, the issue is whether Petitioner has timely filed his habeas claims, not whether he has adequately raised them in state court. See Munoz v. Bravo, No. CV 10-654 RB/WPL, 2010 WL 11619007, at *1 (D.N.M. Nov. 15, 2010) ("As noted in Sena [v. New Mexico State Prison, 109 F.3d 652 (10th Cir. 1997)], the issue was whether the applicant's claim that he was mentally incompetent when he entered a guilty plea was procedurally barred because he failed to raise it on direct appeal. The Sena case does not address the statute of limitations[.]"). (internal citation omitted). Accordingly, the Court should reject Petitioner's reliance on Sena as a means to bypass the AEDPA's statute of limitations.

B. Fraud on The Court

Petitioner alleges that but for a "fraud on the court" he would not have been convicted. (ECF No. 1:10-13; 43:18-24). The "fraud" of which Petitioner complains is his claim that Officer Jamison McCollister lied in the probable cause affidavit which was used to pull over Petitioner's vehicle when the Officer stated that a "Be on the Lookout" (BOLO) had been issued for Petitioner's vehicle. (ECF No. 1:10-13; 43:19-21). In the affidavit, the Officer stated:

[O]n 6-3-2010 at Approx. 2000 hrs. A be on the look out (BOLO) for a white Chevrolet truck with a lawn mower in the bed possibly an intoxicated driver was broadcast over the radio from Oklahoma Highway Patrol.

Mr. Vaughn offers two arguments regarding why he believes this claim is not subject to the AEDPA's statute of limitations, but neither argument is persuasive.

First, Petitioner cites U.S. v. Williams, 790 F.3d 1059 (10th Cir. 2015) and U.S. v. Springer, 875 F.3d 968 (10th Cir. 2017) for his argument that claims of fraud on the court are not subject to the AEDPA's statute of limitations based on the Court's inherent equitable power to correct these types of claims. (ECF Nos. 1:11; 43:18-19). Petitioner's reliance on Williams and Springer is misplaced.

In Williams, the relevant issue concerned a district court's authority to correct a judgment obtained by "fraud on the court" involving fabrication of evidence by investigating officers. U.S. v. Williams, 790 F.3d 1059. The district court had construed the motion under Federal Rule of Civil Procedure 60(d)(3), which acknowledges a district court's inherent authority to set aside a judgment for fraud on the court, but the Tenth Circuit found that the motion was actually a "second or successive" § 2255 petition, subject to the AEDPA. Id. at 1067-1069. One question was whether the district court had the power to entertain the motion without the petitioner having sought the requisite authorization under the AEDPA. In evaluating this issue, the Tenth Circuit began its discussion by stating:

Courts have historically enjoyed the inherent authority to correct judgments obtained by the commission of fraud on the court, regardless of ordinary procedural bars like statutes of limitations or the time limits imposed on motions to set aside judgments for fraud. See Hazel-Atlas, 322 U.S. at 244-46, 64 S.Ct. 997 (acknowledging an exception to the general prohibition against altering a judgment after the expiration of the court term if the judgment was the result of fraud on the court); see also Fed.R.Civ.P. 60(d)(3) ("This rule does not limit a court's power to ... set aside a judgment for fraud on the court."); Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1290-91 (10th Cir. 2005) (explaining that procedural limitations on Rule 60(b) motions do not apply to fraud on the court allegations). This is because "a decision produced by fraud on the court is not in essence a decision at all, and never becomes final." Kenner v. Comm'r, 387 F.2d 689, 691 (7th Cir. 1968).

Next, the Court considered whether the AEDPA had limited that power in the context of a second or successive habeas petition. Id. The Court answered that question affirmatively, citing United States v. Baker, where the Court squarely rejected the possibility that alleging fraud on the court of conviction creates an exception to the procedural bars under § 2255(h). See Baker, 718 F.3d 1204 (10th Cir. 2013). In doing so, the Court reasoned that despite a court's inherent authority to correct a fraud on the court, a petitioner cannot circumvent AEDPA's statutory certification requirements applicable to second-or-successive applications by filing pleadings that are labeled as motions under Rule 60(b) but are actually habeas corpus petitions in substance. Id. Applying Baker in Williams, the Court held that the district court lacked the jurisdiction under § 2255(h) to act on the § 2255 motion in the absence of certification from the Circuit Court. United States v. Williams, 790 F.3d at 1073.

In Springer, the issue was whether, in the context of a second or successive § 2255 petition, the Supreme Court's holding in McQuiggin v. Perkins had overruled the holding in Baker and had allowed for an equitable exception to assert a claim of fraud on the court without obtaining authorization under the AEDPA. Springer, 875 F.3d at 971. In McQuiggin, the Court upheld a "fundamental miscarriage of justice exception" . . . grounded in the 'equitable discretion' of habeas courts" which was not subject to the AEDPA's statute of limitations. McQuiggin, 569 U.S. at 1931. However, in Springer, for two reasons, the Court held that McQuiggin did not impact Baker.

First, the Court noted that McQuiggin's holding was "expressly limited to well-supported claims of actual innocence under the miscarriage of justice exception; it never mentions fraud on the court or any other claim arising under equity." Springer, 875 F.3d at 978. However, in cases where a fraud on the court claim does implicate actual innocence, the applicant must rely on new evidence which shows that it is more likely than not that no reasonable juror would have convicted the prisoner. McQuiggin, 569 U.S. at 1933.

Second, the Court in Springer held that Baker dealt with second or successive petitions, as opposed to an initial petition, which had been the subject of McQuiggin. Springer, 875 F.3d 987-981.

Mr. Vaughn relies on Springer and Williams, and cites language from both decisions wherein the Tenth Circuit had recognized a Court's historical power in equity to correct claims of "fraud on the court" without being subject to procedural bars. (ECF No. 43:18-19). However, the language cited by Mr. Vaughn from Williams, and then Springer, citing Williams, applies to cases seeking to alter a judgment based on fraud on the court, as allowed in Federal Rule of Civil Procedure 60(b), not an initial habeas petition filed under 28 U.S.C. § 2254. See supra, Williams, 790 F.3d at 1071. And in both cases, the Court found that the equitable power did not apply to "second or successive" petitions, as discussed. See supra. But Mr. Vaughn has neither filed a Rule 60(b) motion nor is his petition "second or successive." Accordingly, the Court should reject Petitioner's reliance on Williams and Springer as providing him with an equitable exception to the AEDPA.

As a second basis to circumvent the AEDPA's statute of limitations, Mr. Vaughn relies on the fundamental "miscarriage of justice" equitable exception to 28 U.S.C. § 2244(d) as set forth in McQuiggin v. Perkins, 569 U.S. 1924 (2013). This exception allows a habeas petitioner to bypass the AEDPA's statute of limitations upon a credible showing of actual innocence. But "tenable actual innocence gateway pleas are rare," as a habeas petitioner "'must show that it is more likely than not that no reasonable juror would have convicted the petitioner in light of the new evidence.'" Id. at 1928, 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Proof of reasonable diligence is not a threshold requirement for the actual innocence exception, but "[u]nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing." Id.

As stated, the crux of Mr. Vaughn's "fraud on the court" claim is that the arresting officer provided false information in his affidavit for probable cause regarding his claim that a BOLO had been issued for a vehicle matching the description of the one driven by Petitioner. See ECF No. 1:10-13. In the Complaint, and in support of this claim, Mr. Vaughn attached two letters, both from Stephen Dale, dated October 27, 2010 and August 27, 2012. (ECF Nos. 1-11 & 1-12). The 2010 letter stated that Mr. Dale was informed that a BOLO had not been issued by the OHP for a vehicle matching the Petitioner's' vehicle on or around June 3, 2010, and the 2012 letter confirmed the findings from 2010. (ECF Nos. 1-11 & 1-12). Mr. Vaughn apparently believes that the letters from Officer Dale resulted in his wrongful conviction. But the August 2010 letter from Officer Dale was addressed to Mr. Vaughn and presumably in his possession over a year prior to Mr. Vaughn's guilty plea. And although the 2012 letter is dated after the conviction, it offered no new information. Neither of the letters provide "new evidence" which is required by the "miscarriage of justice exception" to the AEDPA's statute of limitations.

In his response to the Motion to Dismiss, Petitioner states that the evidence is "new" because he was incompetent when he was sentenced. (ECF No. 43:18). But Mr. Vaughn's incompetency claim involved the issue of his competence when he was convicted, not sentenced, and aside from the single assertion, the response fails to elaborate on the statement or even cite to Officer Dale's letters or any "new" evidence in the response. Accordingly, the Court should reject Petitioner's reliance on the "miscarriage of justice" exception to the AEDPA's statute of limitations.

VIII. RECOMMENDATION

The Court should conclude:

1. The claims before the Court concern only Mr. Vaughn's claims of substantive incompetency and "fraud on the court;"

2. Mr. Vaughn's convictions became "final," for purposes of the AEDPA, on January 27, 2012;

3. Mr. Vaughn is not entitled to any statutory or equitable tolling;

4. Sena v. New Mexico State Prison, 109 F.3d 652, 653 (10th Cir. 1997) does not provide Mr. Vaughn with an exception to the AEDPA's statute of limitations;

5. U.S. v. Williams, 790 F.3d 1059 (10th Cir. 2015) and U.S. v. Springer, 875 F.3d 968 (10th Cir. 2017) do not provide Mr. Vaughn with an exception to the AEDPA's statute of limitations;

6. The "fundamental miscarriage of justice" exception does not apply to Mr. Vaughn;

7. The statute of limitations expired on January 28, 2013; and

8. Because Mr. Vaughn waited to file his habeas petition until March 10, 2017, it is untimely.

Accordingly, the Court should GRANT Respondent's Motion to Dismiss (ECF No. 37). In light of the foregoing recommendations, the Petitioner's Motion for Evidentiary Hearing (ECF No. 44) should be DENIED.

IX. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT

The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by August 6, 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).

X. STATUS OF REFERRAL

This Report and Recommendation terminates the referral by the District Judge in this matter.

ENTERED on July 17, 2018.

/s/_________

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE