Jackson v. Tuggle

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
TAMAR JACKSON,

Petitioner - Appellant,

v.

TERRY TUGGLE, Warden,

Respondent - Appellee.

No. 26-5067
(D.C. No. 4:25-CV-00365-SEH-SH)
(N.D. Okla.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
*

_________________________________
Before MATHESON, MURPHY, and ROSSMAN, Circuit Judges.
_________________________________
This matter is before the court on Tamar Jackson’s pro se request for a certificate
of appealability (“COA”). Jackson seeks a COA so he can appeal the district court’s
dismissal, on timeliness grounds, of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C.
§ 2253(c)(1)(A) (providing no appeal may be taken from a final order denying habeas
corpus relief unless the petitioner first obtains a COA); id. § 2244(d) (setting out a one-
year statute of limitations as to habeas corpus petitions). Because Jackson has not “made
a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), this
court denies his request for a COA and dismisses this appeal.

*
This order is not binding precedent except under the doctrines of law of the case,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.
FILED
United States Court of Appeals
Tenth Circuit

August 18, 2026

Christopher M. Wolpert
Clerk of Court
Appellate Case: 26-5067 Document: 14-1 Date Filed: 08/18/2026 Page: 1

2

In his § 2254 habeas petition, Jackson sought to challenge his 2016 Oklahoma
state convictions, entered upon guilty pleas, to the following crimes: 1) obtaining
property by trick or deception after former conviction of two or more felonies;
2) possession of a false identification card after former conviction of two or more
felonies; and 3) knowingly concealing stolen property after former conviction of two or
more felonies. In response, Oklahoma asserted all claims raised in Jackson’s § 2254
petition were time-barred, Jackson was not entitled to equitable tolling, and Jackson
could not avoid the time-bar through the invocation of “actual innocence.” In reply,
Jackson conceded his claims were untimely and he was not entitled to statutory tolling,
see 28 U.S.C. § 2244(d)(2), but asserted he was entitled to equitable tolling and was
actually innocent.
In a thorough order, the district court concluded Jackson did not come close to
demonstrating an entitlement to equitable tolling. See Gibson v. Klinger, 232 F.3d 799,
808 (10th Cir. 2000) (holding that equitable tolling is available “only in rare and
exceptional circumstances”). In that regard, the district court ruled Jackson failed to
demonstrate he acted diligently or the existence of extraordinary circumstances. See
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (holding that equitable tolling “is
only available when [the petitioner] diligently pursues his claims and demonstrates that
the failure to timely file was caused by extraordinary circumstances beyond his control”).
As to the existence of extraordinary circumstances, the district court noted Jackson’s
allegations of ineffective assistance did not rise above garden variety attorney negligence.
See Holland v. Florida, 560 U.S. 631, 652 (2010) (holding that attorney negligence can
Appellate Case: 26-5067 Document: 14-1 Date Filed: 08/18/2026 Page: 2

3

warrant equitable tolling only in extraordinary instances when the conduct constitutes
“far more than garden variety or excusable neglect” (quotations omitted)). Furthermore,
the record, particularly the transcript of the plea colloquy, eviscerated Jackson’s claim of
ineffective assistance. As to diligence, the district court observed Jackson’s filings were
completely silent as to what efforts, if any, he undertook during the eight-plus years
between when his convictions became final and when he finally sought to challenge those
convictions in state court.
The district court likewise concluded Jackson failed to satisfy the demanding
evidentiary requirement for demonstrating the actual innocence pathway for avoiding
§ 2244(d)’s limitations period. See McQuiggin v. Perkins, 569 U.S. 383, 386, 401 (2013).
First, the district court noted Jackson’s guilty plea undermined his claim of actual
innocence. See O’Bryant v. Oklahoma, 568 F. App’x 632, 637 (10th Cir. 2014) (holding
that in addressing an actual innocence claim, this court “may take into account the fact
that the petitioner’s conviction was based on a guilty plea predicated on the petitioner’s
representations of competence and voluntariness, and findings by the court”); see also
Johnson v. Medina, 547 F. App’x 880, 885 (10th Cir. 2013) (concluding the petitioner’s
guilty plea undermined his assertion of actual innocence).
1
Furthermore, the district court
recognized Jackson had failed to cite new evidence in support of his claim of actual
innocence. Fontenot v. Crow, 4 F.4th 982, 1031 (10th Cir. 2021) (“To be credible, a

1
All unpublished dispositions cited in this order are considered solely for their
persuasive value and are not treated as binding precedent. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
Appellate Case: 26-5067 Document: 14-1 Date Filed: 08/18/2026 Page: 3

4

claim of actual innocence requires a petitioner to present new reliable evidence—whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” (quotation omitted)).
To be entitled to a COA, Jackson must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, he must demonstrate
“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.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (quotations omitted). “[W]hen the district court denies a habeas petition
on procedural grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue . . . if the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). This court reviews
for abuse of discretion a district court’s determination that a petitioner is not entitled to
equitable tolling. Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007); see also Hill v.
Williams, 432 F. App’x 749, 750 (10th Cir. 2011) (recognizing that the actual innocence
pathway to avoiding § 2244(d)’s limitations period is a form of equitable tolling). Thus,
this court will grant a COA only if reasonable jurists could debate whether the district
court’s “refusal to toll the statute of limitations was an abuse of discretion.” Fleming,
481 F.3d at 1254-55.
Appellate Case: 26-5067 Document: 14-1 Date Filed: 08/18/2026 Page: 4

5

This court has closely reviewed the district court’s order, Jackson’s appellate
filings, and the entire appellate record. The district court’s denial of Jackson’s requests
for equitable tolling is not reasonably subject to debate. In so concluding, this court has
nothing to add to the cogent analysis set out in the district court’s order of dismissal.
Accordingly, this court DENIES Jackson’s request for a COA and DISMISSES this
appeal.
Entered for the Court

Michael R. Murphy
Circuit Judge
Appellate Case: 26-5067 Document: 14-1 Date Filed: 08/18/2026 Page: 5