                                                                                 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         This order is not binding precedent, except under the doctrines of law of the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
