Jackson v. Bryant ( 2018 )


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  •                                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                         Tenth Circuit
    FOR THE TENTH CIRCUIT                        December 10, 2018
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    CHARLES KEITH JACKSON,
    Petitioner - Appellant,
    v.                                                          No. 18-7047
    (D.C. No. 6:17-CV-00385-RAW-KEW)
    JASON BRYANT, Warden,                                       (E.D. Okla.)
    Respondent - Appellee.
    _________________________________
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    _________________________________
    Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
    _________________________________
    Charles Jackson seeks a certificate of appealability (“COA”) to appeal the
    district court’s denial of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss
    the appeal.
    I
    Jackson was convicted by a jury in Oklahoma state court of first degree
    manslaughter. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his
    conviction on direct appeal on August 27, 2015. Jackson’s conviction became final
    on November 25, 2015, when his deadline to file a petition for writ of certiorari with
    the United States Supreme Court passed.
    *
    This order is not binding precedent, except under the doctrines of law of the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.
    On July 12, 2016, Jackson filed a brief in support of an application for post-
    conviction relief with the state district court. The brief was not accompanied by a
    complete application for post-conviction relief and therefore did not comply with
    Oklahoma procedural requirements. Okla. Stat. tit. 22, § 1081. The state district
    court denied his brief on August 15, 2016, because it was not properly filed. Jackson
    received a copy of the denial in August 2016, but did not rectify the error. On
    February 24, 2017, Jackson filed a proper post-conviction application with the state
    district court, which was denied in May 2017. The OCCA affirmed the denial on
    September 8, 2017.
    In October 2017, Jackson filed a § 2254 petition in federal district court, which
    ultimately denied the petition as time-barred and declined to grant a COA. Jackson
    now seeks a COA from this court.
    II
    A petitioner may not appeal the denial of habeas relief under § 2254 without a
    COA. § 2253(c)(1). We may issue a COA “only if the applicant has made a
    substantial showing of the denial of a constitutional right.” § 2253(c)(2). To make
    such a showing, Jackson must demonstrate “that reasonable jurists could debate
    whether (or, for that matter, agree that) the petition should have been resolved in a
    different manner or that the issues presented were adequate to deserve
    encouragement to proceed further.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000)
    (quotations omitted).
    2
    The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a
    one-year limitations period on habeas petitions filed by state prisoners. § 2244(d).
    This period generally runs from the date a conviction became final. See
    § 2244(d)(1). Absent tolling, Jackson’s AEDPA limitations period expired on
    November 26, 2016.
    AEDPA’s limitation period is tolled while a properly filed application for state
    post-conviction relief is pending. § 2244(d)(2). “Proper filing” occurs when the
    application’s “delivery and acceptance are in compliance with the applicable laws
    and rules governing filings.” Artuz v. Bennett, 
    531 U.S. 4
    , 8 (2000). Whether an
    application for state post-conviction relief is “properly filed” is a matter of state
    procedural law. Garcia v. Shanks, 
    351 F.3d 468
    , 471 (10th Cir. 2003).
    Careful review of Jackson’s brief, the record, and the district court’s order
    fails to “raise a debatable issue as to whether his petition was improperly dismissed
    as time-barred.” May v. Workman, 
    339 F.3d 1236
    , 1237 (10th Cir. 2003). Jackson
    did not properly file an application for state post-conviction relief under Oklahoma
    law within the one-year AEDPA limitations period. Therefore, he is not entitled to
    statutory tolling. See Clark v. Oklahoma, 
    468 F.3d 711
    , 714 (10th Cir. 2006) (state
    post-conviction proceedings toll AEDPA statute of limitations only when “filed
    within the one year allowed by AEDPA”).
    Jackson argues that his limitations period should be equitably tolled, based on
    either his good faith attempts to comply with the statute of limitations or his
    proclaimed actual innocence. Equitable tolling “is only available when an inmate
    3
    diligently pursues his claims and demonstrates that the failure to timely file was
    caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 
    223 F.3d 1217
    , 1220 (10th Cir. 2000). Because Jackson had notice of his failure to
    comply with the filing requirements prior to the expiration of the AEDPA limitations
    period, his failure to correct the errors cannot be considered an extraordinary
    circumstance beyond his control.
    Equitable tolling is also appropriate “when a prisoner is actually innocent.”
    Gibson v. Klinger, 
    232 F.3d 799
    , 808 (10th Cir. 2000). Jackson claims that he should
    have been found guilty only of negligent homicide because his intoxication at the
    time of the crime was by physician-prescribed back medication. To meet the actual
    innocence exception, however, a petitioner must demonstrate that “it is more likely
    than not that no reasonable juror would have convicted him” based upon new reliable
    evidence. Schlup v. Delo, 
    513 U.S. 298
    , 327 (1995) (quotation omitted). There is
    nothing in Jackson’s brief that constitutes new, reliable evidence that he is actually
    innocent of first degree manslaughter.
    III
    For the foregoing reasons, we DENY a COA and DISMISS the appeal.
    Entered for the Court
    Carlos F. Lucero
    Circuit Judge
    4