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
-3-