Jackson v. Bryant

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 10, 2018
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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.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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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This order is not binding precedent, except under the doctrines of law of the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
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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
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