Jackson v. McCollum , 644 F. App'x 814 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
March 22, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JOSEPH MACASTLE JACKSON,
Petitioner - Appellant,
v. No. 16-6009
(D.C. No. 5:13-CV-00147-C)
TRACY McCOLLUM, Warden; (W.D. Okla.)
OKLAHOMA DEPARTMENT OF
CORRECTIONS; JUSTIN JONES,
Director,
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HOLMES, and MORITZ, Circuit Judges.
Petitioner-Appellant Joseph Macastle Jackson, an Oklahoma state inmate
appearing pro se, seeks a certificate of appealability (“COA”) allowing him to
appeal the denial of his motion to reinstate his 28 U.S.C. § 2241 habeas
application that the district court dismissed in 2014. We deny his request for a
COA and dismiss this appeal.
In 2013, Mr. Jackson alleged that his Eighth Amendment rights were
violated by an Oklahoma Department of Corrections regulation prohibiting his
transfer to a lower security facility. The district court dismissed his application
without prejudice, adopting the magistrate judge’s supplemental report and
recommendation that Mr. Jackson had no remedy under § 2241, and alternatively,
that he failed to exhaust available Oklahoma Department of Corrections
administrative remedies. Jackson v. McCollum, No. CIV-13-147-C, 2014 WL
3689671 (W.D. Okla. July 23, 2014). We denied a COA, finding that his claims
were not exhausted and refusing to reach the merits. Jackson v. McCollum, 587
F. App’x 502 (10th Cir. 2014) (unpublished), cert. dismissed, 136 S. Ct. 101(2015). Nearly a year later, Mr. Jackson attempted to properly exhaust, but
corrections officials denied his appeal as untimely. 1 R. 29.
Mr. Jackson now seeks to reinstate his § 2241 application, arguing that his
failure to exhaust should be overlooked. The district court summarily denied his
motion to reinstate noting that it was “without legal or factual foundation.” Id. at
144. On appeal, Mr. Jackson recounts his efforts to exhaust and argues for relief
on the merits.
To proceed, Mr. Jackson must obtain a COA. See Montez v. McKinna, 208
F.3d 862, 867 (10th Cir. 2000). He is entitled to a COA only upon making “a
substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), or put differently, that “jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further,” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003).
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Mr. Jackson attempts to satisfy this standard by arguing that while he did
not exhaust his grievance, the process’s instructions and procedures are, in
essence, vague, confusing, and unfair. Aplt. Br. at 14–37. Giving his pro se
pleadings their mandated liberal construction, we construe Mr. Jackson’s
arguments to be both that exhaustion was futile and that the lack of clarity
surrounding the grievance process should excuse his failure to comply with
procedural requirements.
While we recognize futility as a narrow exception to the exhaustion
requirement, see Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010), this
exception no longer aids Mr. Jackson. It is now too late for him to register his
grievance with corrections officials. See 1 R. 30 (denying appeal out of time).
With no avenues left to pursue, Mr. Jackson has technically exhausted his claim,
see Coleman v. Thompson, 501 U.S. 722, 732 (1991), but he has failed to comply
with administrative requirements and his claims are thus barred by procedural
default, see Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 761 (3d Cir. 1996);
see also Pelts v. True, 132 F.3d 43 (10th Cir. 1997) (unpublished). His assertion
that the grievance process is confusing or unclear does not establish either
(1) cause and prejudice or (2) a fundamental miscarriage of justice — and one of
these is required to overcome a procedural default. See Magar v. Parker, 490
F.3d 816, 819 (10th Cir. 2007). No jurist of reason would find it debatable
whether the district court was correct in its ruling.
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Accordingly, we DENY Mr. Jackson’s request for a COA and DISMISS
this appeal. Mr. Jackson’s application to proceed on appeal in forma pauperis and
his request for counsel are also DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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