Vaughn v. Phillips

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 5, 2019
• Docket: 18-6175
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS June 5, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

GREG VAUGHN,

Petitioner - Appellant,

v. Nos. 18-6175 & 18-6176 (D.C. Nos. 5:18-CV-00349-C & JOE M. ALLBAUGH, Director of the 5:17-CV-00269-C) Oklahoma Department of Corrections,* (W.D. Okla.)

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY**

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.

In these two appeals, Petitioner Greg Vaughn seeks a certificate of appealability to

appeal the district court’s dismissal as time-barred of two 28 U.S.C. § 2254 habeas corpus

petitions. Because these appeals raise very similar legal issues, we consolidate them here

for purposes of disposition.

* Because Petitioner is currently serving a suspended sentence under the supervision of the Oklahoma Department of Corrections, the proper respondent in these habeas appeals is Joe M. Allbaugh, the official in charge of the state correctional agency. See Rule 2(a), Rules Governing Section 2254 Cases in the United States District Courts. We have corrected the captions accordingly. ** This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. In Appeal No. 18-6175, Petitioner seeks to appeal the district court’s dismissal of

Case No. 5:18–CV–00349–C, which he initiated in April 2018 by filing a habeas petition

challenging his convictions on various Oklahoma state charges to which he pled guilty in

October 2011. In Appeal No. 18-6176, Petitioner seeks to appeal the district court’s

dismissal of Case No. 5:17–CV–00269–C, in which he filed a habeas petition in March

2017 to challenge his convictions on separate Oklahoma state charges to which he pled

guilty in January 2012. In each case, Petitioner does not dispute that his habeas petition

was filed outside § 2244(d)(1)’s one-year statute of limitations; however, he contends that

the statute of limitations is inapplicable and/or subject to equitable tolling because (1) he

was mentally incompetent and suffering from PTSD when he pled guilty and was

sentenced in each case, and (2) fraud on the court occurred when law enforcement

officers included false information on their arrest affidavits and otherwise presented false

information to the trial court, and when the district attorney failed to present exculpatory

evidence to the court.

Appeal No. 18-6176 comes to us following a remand. In the previous appeal, a

panel of this court held that the district court erred in dismissing Petitioner’s habeas

petition as time-barred without first considering his arguments for avoiding or equitably

tolling the statute of limitations. See Vaughn v. Bolt, 712 F. App’x 833, 835–36 (10th

Cir. 2018) (unpublished). The case was accordingly remanded for the district court to

consider these arguments. See id. at 836. On remand, the district court re-referred the

-2- case to a magistrate judge. The magistrate judge issued a twenty-seven-page report and

recommendation that thoroughly considered Petitioner’s arguments and evidence,

ultimately concluding that he had not shown either a valid exception to the statute of

limitations or an entitlement to statutory or equitable tolling. The district court agreed

and dismissed the habeas petition as untimely.

In Case No. 5:18–CV–00349–C, which Petitioner seeks to appeal in Appeal No.

18-6175, a different magistrate judge considered Petitioner’s similar arguments for

avoiding or tolling the statute of limitations. In a sixteen-page report and

recommendation, this magistrate judge likewise concluded that Petitioner’s allegations

and evidence of incompetency and fraud on the court did not entitle him either to an

exception to the statute of limitations or to statutory or equitable tolling. In reaching this

conclusion, the magistrate judge relied in part on the other magistrate judge’s reasoning in

Case No. 5:17–CV–00269–C, but he also elaborated on this reasoning and considered

fact-specific issues relating to Petitioner’s arguments and evidence of incompetency and

fraud on the court in this case. Again, the district court agreed with the magistrate judge’s

recommendations and thus dismissed the habeas petition as untimely.

We have carefully reviewed Petitioner’s arguments, the records in both appeals,

and the relevant cases. We conclude that reasonable jurists could not debate the

correctness of the district court’s dismissal of both habeas petitions as untimely. See

Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). In each case, the magistrate judge

-3- thoroughly and persuasively explained why Petitioner’s allegations and evidence failed to

demonstrate a valid basis for avoiding or tolling the statute of limitations. We see no

need to reiterate those explanations here. We also conclude that reasonable jurists could

not debate the correctness of the district court’s denial of Petitioner’s requests for an

evidentiary hearing in each case.

For substantially the same reasons given by the magistrate judges and adopted by

the district court, we DENY Petitioner’s requests for a certificate of appealability and

DISMISS both appeals. Petitioner’s motion to proceed in forma pauperis on appeal in

each case is GRANTED.

Entered for the Court

Monroe G. McKay Circuit Judge

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