                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                               FOR THE TENTH CIRCUIT                   March 16, 2016

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                        No. 15-5110
                                            (D.C. Nos. 4:15-CV-00072-TCK-TLW &
MICHAEL MCCALISTER,                                 4:99-CR-00020-TCK-1)
                                                          (N.D. Okla.)
       Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges.


      Michael McCalister, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2255

motion as being an unauthorized second or successive § 2255 motion. We deny a

COA and dismiss this matter.

                                     Background

      McCalister was convicted in 1999 of conspiracy to possess with intent to

distribute controlled substances in violation of 21 U.S.C. § 846. He since has filed

several challenges to his conviction, including a § 2255 motion and other motions.

*
  This order is not binding precedent except under the doctrines of law of the case,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.
Most recently, in June 2012 he filed a § 2255 motion that the district court dismissed

as being an unauthorized second or successive motion. This court denied a COA and

denied McCalister authorization to pursue the claims. See United States v.

McCalister, 545 F. App’x 718, 722-23 (10th Cir. 2013) (unpublished).

      In 2015, McCalister filed a new § 2255 motion, which was based on events

after McCalister’s trial involving the alleged kingpins of the conspiracy. McCalister

asserted that in May 2005 the district court allowed the dismissal of the indictment

against John Torrence, who then pleaded guilty to a lesser offense. McCalister

complained that the record showed neither that the government moved for the

dismissal of the indictment nor that the district court stated reasons for the dismissal.

McCalister also stated that in October 2009 the government moved under

Fed. R. Crim. P. 48(a) to dismiss the indictment (without prejudice) against

Orlando Mackey, who was a fugitive. McCalister complained that the Rule 48(a)

motion gave no reasons for dismissing the indictment against Mackey, and the

district court improperly granted the motion without requiring the government to

supply its reasons.

      In light of these events, McCalister sought to pursue claims of selective

prosecution, prosecutorial misconduct, and judicial bias. He asserted that the factual

basis for his claims did not exist until October 2014, because that is when the

limitations period expired for filing a new indictment against Mackey. Noting that

McCalister already had filed at least three § 2255 motions, the district court


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concluded that the new motion was an unauthorized second or successive § 2255

motion. It declined to transfer the motion to this court for authorization and instead

dismissed it for lack of jurisdiction.

       McCalister timely filed a Fed. R. Civ. P. 59(e) motion, arguing that his motion

was not properly considered second or successive because his claims were not ripe at

the time he filed any of his previous § 2255 motions. The district court summarily

denied the motion and then denied McCalister’s motions for a COA and to proceed

without prepayment of costs and fees.1

                                         Analysis

       McCalister must have a COA to appeal. See United States v. Harper, 545 F.3d

1230, 1233 (10th Cir. 2008). For a COA, he must show both “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,

484 (2000).

       McCalister asserts that his claims are not second or successive because this is

the first time he has brought them. He is incorrect. Once a federal prisoner has


1
  McCalister argues that the district court’s orders dismissing his § 2255 motion and
his Rule 59(e) motion were insufficient to allow appellate review. We disagree. The
order dismissing the § 2255 motion was brief, but adequate, and the minute order
denying the Rule 59(e) motion was not improper. McCalister misapprehends the
authorities he cites for the proposition that the district court could not deny his
Rule 59(e) motion without explanation.


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pursued relief under § 2255, most subsequent claims, even ones that were never made

before, are second or successive claims. There are some exceptions, one of which

McCalister has invoked before and again cites in this case: claims that were not ripe

at the time of the first § 2255 motion are not properly considered second or

successive claims, see Panetti v Quarterman, 551 U.S. 930, 947 (2007); In re

Weathersby, 717 F.3d 1108, 1110-11 (10th Cir. 2013) (per curiam). But we need not

consider when McCalister’s claims became ripe, and thus whether reasonable jurists

could debate the procedural ruling, because it is not debatable whether the § 2255

motion stated a valid claim of the denial of a constitutional right.

      The motion presented three claims. First, McCalister asserted that prosecuting

him, but then allowing Torrence to plead guilty to a lesser offense and dismissing the

indictment against Mackey, constituted selective prosecution, in violation of his right

to equal protection. Although prosecutors enjoy broad discretion, “[such] discretion

is subject to constitutional constraints.” United States v. Armstrong, 517 U.S. 456,

464 (1996) (internal quotation marks omitted). “One of these constraints, imposed

by the equal protection component of the Due Process Clause of the Fifth

Amendment, is that the decision whether to prosecute may not be based on an

unjustifiable standard such as race, religion, or other arbitrary classification.” Id.

(citation and internal quotation marks omitted). To proceed with a

selective-prosecution claim, “[t]he claimant must demonstrate that the federal

prosecutorial policy had a discriminatory effect and that it was motivated by a


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discriminatory purpose.” Id. at 465 (internal quotation marks omitted). This

standard is a “demanding one.” Id. at 463.

      McCalister, however, failed to identify any “unjustifiable standard,” such as

race or religion, or “arbitrary classification” involved in the government’s decisions.

He simply alleged that years after his conviction, Torrence and Mackey were treated

more favorably than he was, even though they were more criminally responsible. His

allegations demonstrated neither a discriminatory effect nor a discriminatory purpose

sufficient to proceed with a selective-prosecution claim. See id. at 465 (“In order to

dispel the presumption that a prosecutor has not violated equal protection, a criminal

defendant must present clear evidence to the contrary.” (internal quotation marks

omitted)). No reasonable jurist could debate the validity of this claim.2

      Second, McCalister argued that the prosecutor committed misconduct (1) by

violating McCalister’s right to equal protection through selective prosecution, and

(2) by dismissing the indictment against Mackey to prevent McCalister from

discovering evidence about police misconduct, evidence that would help him

challenge his own conviction. As discussed above, McCalister failed to state a

plausible claim of selective prosecution, and therefore the related allegation of
2
  We recognize that McCalister unsuccessfully moved the district court to explain its
orders regarding Torrence and Mackey. Even to obtain discovery, however, a
claimant must present “some evidence that similarly situated defendants” who do not
share the claimant’s characteristic (e.g., race) “could have been prosecuted, but were
not.” Armstrong, 517 U.S. at 469. Having failed to identify any unjustifiable
standard or arbitrary classification, much less present any evidence of such,
McCalister failed to meet this “rigorous standard.” Id. at 468.


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misconduct cannot proceed. And the allegations regarding a cover-up were mere

speculation and conjecture, unsupported by any evidence. No reasonable jurist could

debate whether McCalister stated a valid claim of prosecutorial misconduct.

       Finally, McCalister asserted that the district court’s decisions favoring

Torrence and Mackey, without requiring the government to provide reasons in either

situation, demonstrated judicial bias. But as with the other claims, no reasonable

jurist could debate this issue. It is well-established that judicial rulings alone

generally are insufficient to establish bias, see Liteky v. United States, 510 U.S. 540,

555 (1994); United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993), as are the

“speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar

non-factual matters” that underlie McCalister’s allegations, Cooley, 1 F.3d at 993.

                                        Conclusion

       McCalister’s motion to proceed without prepayment of costs and fees is

granted, but McCalister remains obligated to pay costs and fees in full. A COA is

denied and this matter is terminated.


                                             Entered for the Court



                                             ELISABETH A. SHUMAKER, Clerk




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