Jackson v. Martin

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 30, 2019
• Docket: 19-6132
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS December 30, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

JOSEPH M. JACKSON,

Petitioner - Appellant, No. 19-6132 (D.C. No. 5:19-CV-00589-C) v. (W.D. Okla.) JIMMY MARTIN,

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.

Joseph M. Jackson, an Oklahoma state prisoner proceeding pro se, seeks to

appeal the district court’s denial of his 28 U.S.C. § 2241 petition. The matter is

before this court on his request for a certificate of appealability (“COA”). See

28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a “final order

in a habeas corpus proceeding in which the detention complained of arises out of

process issued by a State court” unless the petitioner first obtains a COA); Montez

v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (holding § 2253(c)(1)(A) applies

when a state habeas petitioner is proceeding under § 2241). Because Jackson has not made a “substantial showing of the denial of a constitutional right,” this court

denies his request for a COA and dismisses this appeal. 28 U.S.C. § 2253(c)(2).

In his § 2241 petition, Jackson asserts the Oklahoma Pardon and Parole

Board violated his due process rights when it denied his request for parole.

Jackson applied for parole pursuant to Okla. Stat. tit. 57, § 332.21. As cogently

explained by the magistrate judge in his Report and Recommendation (“R & R”), 1

Jackson does not fall within the parameters of § 332.21 because his underlying

crime of conviction is first-degree murder. See Okla. Stat. tit. 57,

§§ 332.21(A)(4), 571(2)(i). In any event, the magistrate judge correctly

concluded that because Oklahoma’s discretionary parole scheme does not

establish a liberty interest, Jackson’s § 2241 petition did not state a viable due

process claim. See Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir. 1979).

A COA may issue if Jackson “has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, 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 . . . the

issues presented were adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation omitted). Jackson has

1 Upon de novo review, the R & R was adopted by the district court. See 28 U.S.C. § 636(b)(1)(B).

-2- failed to make the requisite showing. The district court’s denial of his § 2241

petition is indisputably correct. Jackson does not fall within the parameters of

§ 332.21 and, more importantly, that state-law provision does not create a liberty

interest necessary to support a due process claim. Thus, this court DENIES

Jackson’s request for a COA and DISMISSES this appeal. Furthermore, because

Jackson has failed to advance a “reasoned, nonfrivolous argument on the law and

facts,” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008), this court also

DENIES his request to proceed on appeal in forma pauperis. Jackson is,

therefore, ordered to immediately remit any unpaid portion of the appellate filing

fee in this appeal.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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