Tinsley

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

MICHAEL E. JACKSON, JR., )

)

Petitioner, )

)

v. ) Case No. CIV-26-928-D

)

SCOTT TINSLEY, )

)

Respondent. )

REPORT AND RECOMMENDATION

Petitioner Michael E. Jackson, Jr., an Oklahoma state prisoner

appearing pro se, brings this action under 28 U.S.C. § 2254 seeking habeas

corpus relief from his state court convictions and sentences. See Doc. 1.1 United

States District Judge Timothy D. DeGiusti has referred this matter to the

undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C.

§ 636(b)(1)(B), (C). Doc. 5. The Court ordered a response to the petition, and

Respondent filed a motion to dismiss the petition as untimely. Docs. 11, 17, 18.

Petitioner responded to the motion to dismiss, Doc. 19, so the matter is at issue.

The undersigned recommends the Court grant Respondent’s motion and

dismiss the petition as untimely. See 28 U.S.C. § 2244(d)(1).

1 Citations to a court document are to its electronic case filing designation

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

I. Background.

Petitioner seeks federal habeas corpus relief from his convictions and

sentences in two cases from the Stephens County, Oklahoma District Court.

Doc. 18, Exs. 1, 2; see generally Doc. 1. In Case No. CF-2021-44, a jury convicted

Petitioner of feloniously pointing a firearm after former conviction of two or

more felonies (Count 1), felon in possession of a firearm after former conviction

of a felony (Count 2), and misdemeanor concealing stolen property (Count 3).

Doc. 18, Ex. 1. The state district court sentenced Petitioner to thirty-five years’

imprisonment on Count 1, thirty years on Count 2, and one year in jail on

Count 3. Id. In Case No. CF-2021-55, the same jury convicted Petitioner of

attempting to commit subornation of perjury after former conviction of two or

more felonies. Doc. 18, Ex. 2.2 The state district court sentenced Petitioner to

fifteen years’ imprisonment on that conviction. Id. The court ordered all terms

to run consecutively. Doc. 18, Ex. 2.

Petitioner, through counsel, appealed to the Oklahoma Court of Criminal

Appeals (OCCA). Doc. 18, Exs. 3, 4. During the pendency of his direct appeal,

Petitioner filed a pro se motion for new trial based on newly discovered

evidence. Id. Ex. 6. The state district court denied it on September 20, 2023.

Id. Ex. 7. Also while his direct appeal was pending, Petitioner filed a pro se

2 The state district court combined the cases for trial. See Doc. 18, Ex. 3,

at 9.

motion for forensic DNA testing. Id. Ex. 8. The state district court denied the

motion on February 5, 2024. Id. Ex. 9. Petitioner appealed this denial to the

OCCA. Id. Ex. 10. The OCCA declined jurisdiction, citing Petitioner’s pending

direct appeal where he was represented by counsel. Id. Ex. 11. On June 6, 2024,

the OCCA issued its summary opinion affirming the judgments and sentences

in Case Nos. CF-2021-44 and CF-2021-55. Id. Ex. 12.

Petitioner filed a post-conviction application in the state district court on

June 2, 2025. Id. Ex. 13. The state district court initially denied it in a

summary order issued on June 12, 2025, and denied it again in an order issued

September 24, 2025. Id. Exs. 15, 18. Petitioner appealed to the OCCA and that

court issued an order affirming the denial of post-conviction relief on October

17, 2025. Id. Exs. 19, 20.

Petitioner placed his habeas petition in the prison mail on April 20, 2026.

Doc. 1, at 25. In nine grounds for relief, he re-asserts the claims his counsel

raised in his direct appeal (Grounds 1-5), and four claims he states he raised

in his post-conviction proceedings including ineffective assistance of trial

counsel, denial of bail, abuse of discretion by state district judges, and

ineffective assistance of appellate counsel (Grounds 6-9). Id. at 6-21.

II. Analysis.

Respondent moves to dismiss the petition as untimely. Docs. 17, 18.

Petitioner responds to the motion by arguing his untimeliness should be

excused because he is actually innocent of possessing firearms and the Court

should consider his convictions void due to a lack of due process. Doc. 19.

A. Limitations period established by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA).

The AEDPA established a one-year limitation period during which an

inmate in state custody can file a federal habeas petition challenging a state

conviction: “A [one]-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of a

State court.” 28 U.S.C. § 2244(d)(1). The act provides four alternative starting

dates for the limitation period:

The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or

laws of the United States is removed, if the applicant was

prevented from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise

of due diligence.

Id.

It also includes a tolling provision for properly filed post-conviction

actions:

The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any

period of limitation under this subsection.

Id. § (d)(2). To meet the “properly filed” requirement, an inmate must comply

with state procedural requirements. Habteselassie v. Novak, 209 F.3d 1208,

1210-11 (10th Cir. 2000) (defining a “properly filed” application as “one filed

according to the filing requirements for a motion for state post-conviction

relief” and giving examples of such requirements).

A petition filed outside the statute of limitations, accounting for

statutory tolling, will be considered timely filed only “in rare and exceptional

circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)

(“AEDPA’s one-year statute of limitations is subject to equitable tolling but

only ‘in rare and exceptional circumstances.’” (quoting Davis v. Johnson, 158

F.3d 806, 811 (5th Cir. 1998))).

B. Petitioner’s deadline to file for habeas corpus relief.

Unless a petitioner shows otherwise, the limitations period typically

runs from the date the judgment becomes “final” under § 2244(d)(1)(A). Preston

v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). “[A] judgment becomes final

when the defendant has exhausted all direct appeals in state court and the

time to petition for a writ of certiorari from the United States Supreme Court

has expired (which is 90 days after the decision by the State’s highest court).”

Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012). Petitioner’s

conviction and sentence became final on September 4, 2024, ninety days after

the OCCA affirmed them.

The one-year period of limitation begins to run the day after a conviction

is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011); see

also United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (adopting

the “anniversary method” in which “‘the day of the act . . . from which the

designated period of time begins to run shall not be included’” (quoting Fed. R.

Civ. P. 6(a))). So Petitioner’s one-year limitation period began on September 5,

2024, and, absent tolling, expired one year later, on September 5, 2025.

C. Availability and effect of tolling on the limitations period.

1. Statutory tolling.

The AEDPA allows for tolling of the limitation period while a properly

filed state post-conviction action is pending before the state courts. See 28

U.S.C. § 2244(d)(2). An application for post-conviction relief in state court

“‘remains pending’ ‘until the application has achieved final resolution through

the State’s postconviction procedures,’” that is, when the “State’s highest court

has issued its mandate or denied review.” Lawrence v. Florida, 549 U.S. 327,

332 (2007) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)). But only state

post-conviction actions filed within the one year allowed by AEDPA will toll

the statute of limitations. See Davis v. Bridges, 2024 WL 140026, at *4 (10th

Cir. 2024) (“[O]nly state petitions for post-conviction relief filed within the one

year allowed by AEDPA will toll the statute of limitations.” (quoting Clark v.

Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)).

Petitioner tolled the limitations period when he filed a post-conviction

application on June 2, 2025, with 95 days remaining in the year. 28 U.S.C.

§ 2244(d)(2). The period was tolled until the OCCA issued its opinion affirming

the denial of post-conviction relief on October 17, 2025. The clock started again

on October 18, 2025, and expired 95 days later on January 21, 2026. Petitioner

did not file his habeas corpus petition until April 20, 2026, when he placed it

in the prison mail for filing. Doc. 1. So he filed it after his statute of limitations

had expired.

2. Equitable tolling.

Petitioner filed his habeas corpus petition after the expiration of the

limitations period. So unless equitable tolling applies to save it, the petition is

untimely and the Court must dismiss it.

“[A habeas] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows

‘(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 (2010) (quoting Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005)). Even assuming a diligent pursuit of rights, the one-year

period of limitation “is subject to equitable tolling . . . only in rare and

exceptional circumstances.” Gibson, 232 F.3d at 808 (quoting Davis, 158 F.3d

at 811). Petitioner must “demonstrate[ ] 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). And it is his burden to prove that

equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011).

“Simple excusable neglect is not sufficient.” Gibson, 232 F.3d at 808.

Petitioner asserts he diligently pursued his rights by filing several

motions his appellate counsel would not file for him during his direct appeal.

Doc. 19, at 12. But these filings occurred before the limitations period started,

so they do not demonstrate diligence here. And Petitioner does not explain why

he waited until his one-year limitations period had almost expired before

seeking post-conviction relief. He also does not specify any external

circumstance that stood in the way of him diligently pursuing his rights during

that period or the period after the OCCA denied his post-conviction application.

See, e.g., Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well

established that ignorance of the law, even for an incarcerated pro se

petitioner, generally does not excuse prompt filing.” (internal quotation marks

omitted)). So the Court should conclude Petitioner has not carried his burden

and decline to apply equitable tolling to the limitations period.

3. Actual innocence exception.

Petitioner’s statute of limitations has expired and he is not entitled to

equitable tolling. As a result, Petitioner’s only remaining path around the

§ 2244(d) deadline would be “a ‘credible showing of actual innocence.’” Doe v.

Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins, 569

U.S. 383, 392 (2013)). “To be credible, such a claim requires petitioner to

support his allegations of constitutional error with new reliable evidence—

whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence—that was not presented at trial.” Schlup v. Delo,

513 U.S. 298, 324 (1995) (emphasis added). Ultimately, Petitioner “must show

that it is more likely than not that no reasonable juror would have convicted

him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting

Schlup, 513 U.S. at 327). “‘[T]enable actual-innocence gateway pleas are rare,’

arising only ‘in an extraordinary case.’” Id. (quoting McQuiggin, 569 U.S. at

401, and then quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).

Petitioner alleges actual innocence, but he presents no new evidence to

support his claim. Instead, he reiterates the sufficiency-of-the-evidence

argument he raised in his direct appeal that the OCCA rejected. See Doc. 19,

at 2-8; see also Doc. 18, Ex. 12. But “Schlup bars this tactic.” Wonsch v. Crow,

No. 22-6040, 2022 WL 16646808, at *3 (10th Cir. Nov. 3, 2022) (agreeing with

district court that arguing insufficient evidence does not “tend[] to show actual

innocence” but only “legal innocence”), vacated on other grounds by Wonsch v.

Crow, 2022 WL 17403076, at *1 (10th Cir. Nov. 30 2022).

Petitioner asserts that the person who rented the motel room, Jamie

Brown, has stated in an affidavit that she would have testified at trial that she

never saw Petitioner possess or point a firearm. Doc. 19, at 7-8.3 But, as the

state district court observed, Petitioner “admits that such evidence was known

to [him] prior to jury trial.” Doc. 18, Ex. 7.4 Newly presented evidence does not

3 There is no affidavit from Ms. Brown for the Court to consider. Petitioner

did not attach it to his petition, Doc. 1, and it was not part of his motion for

new trial filed in state court. Doc. 18, Ex. 6. Asking the Court to “take his word

for it” “does not meet the demanding actual innocence standard.” Creller v.

Crow, No. 22-6062, 2022 WL 16964948, at *4 (10th Cir. Nov. 16, 2022).

4 It also appears Petitioner’s counsel was aware of and evaluated Ms.

Brown’s potential testimony and made the “final decision” not to call her as a

witness at trial. Doc. 18, Ex. 13, at 58.

equate to newly discovered evidence.5 Cf. Klein v. Franklin, 437 F. App’x 681,

684 (10th Cir. 2011) (“[W]hile it is possible that Klein did not understand the

legal significance of all these facts, the limitations period begins to run when

the petitioner knows of the facts giving rise to the habeas claim; it is not

required that he or she understand the legal significance of those facts.” (citing

Preston, 234 F.3d at 1120)).

Petitioner presents no new, “reliable” evidence that satisfies the

stringent standard required to show actual innocence. Creller, 2022 WL

16964948, at *3 (noting that actual innocence under 2244 “is a demanding

standard”). So the Court should find no grounds for bypassing the application

of the statute of limitations to this case.

III. Recommendation and notice of right to object.

The undersigned recommends the Court dismiss Petitioner’s habeas

corpus petition as untimely. The undersigned also recommends the Court deny

Petitioner’s motion to appoint counsel as moot. Doc. 3.

The undersigned advises Petitioner of his right to file an objection to this

Report and Recommendation with the Clerk of Court on or before

5 Petitioner also asserts his counsel’s ineffectiveness and a lack of due

process during trial should void his convictions. See Doc. 19, at 14-20. But these

arguments, which rely on “constitutional errors that allegedly occurred during

his trial” rather than “any new evidence proving he is actually innocent,”

cannot meet the demanding actual innocence standard. Creller, 2022 WL

16964948, at *4.

September 15, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2).

The undersigned further advises Petitioner that failure to file a timely

objection to this Report and Recommendation waives his right to appellate

review of both factual and legal issues contained herein. See Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991).

This Report and Recommendation disposes of all issues and terminates

the referral to the undersigned Magistrate Judge in the captioned matter.

ENTERED this 25th day of August, 2026.

ga Cer _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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