                                                               FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit
                   UNITED STATES COURT OF APPEALS              March 27, 2006
                              TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                Clerk of Court

JOSEPH MACASTLE JACKSON,

     Petitioner-Appellant,
v.                                             No. 05-6184
STATE OF OKLAHOMA and VIRGIL              (D.C. No. CIV-05-214-C)
C. BLACK,                                    (W. D. Oklahoma)

      Respondents-Appellees.
__________________________________


JOSEPH MACASTLE JACKSON,

     Petitioner-Appellant,
v.                                             No. 05-6199
STATE OF OKLAHOMA and VIRGIL              (D.C. No. CIV-05-214-C)
C. BLACK,                                    (W. D. Oklahoma)

      Respondents-Appellees.
__________________________________


JOSEPH MACASTLE JACKSON,

     Petitioner-Appellant,
v.                                             No. 05-6237
STATE OF OKLAHOMA and VIRGIL              (D.C. No. CIV-05-214-C)
C. BLACK,                                    (W. D. Oklahoma)

     Respondents-Appellees.

__________________________________
                              ORDER AND JUDGMENT*


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of these

appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are, therefore,

ordered submitted without oral argument.

       Joseph Macastle Jackson appeals the district court’s dismissal of his “Emergency

Petition for Transfer of State Court Post-Conviction Relief Proceedings,” Case No. 05-

6184, the district court’s denial of his motion to proceed in forma pauperis, Case No. 05-

6199, and the district court’s denial of his motion for relief from judgment pursuant to

Fed. R. Civ. P. 60(b), Case No. 05-6237. These three appeals have been consolidated for

procedural purposes. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

       In 1983, Jackson was convicted, following a jury trial in Oklahoma state court, of

conspiracy to commit murder and first degree murder. He was sentenced to five years

imprisonment for the conspiracy offense, and life imprisonment for the murder offense, to


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.


                                            -2-
be served concurrently. On August 7, 1987, the Oklahoma Court of Criminal Appeals

(OCCA) affirmed both Jackson’s convictions and sentence. Jackson v. State, 741 P.2d

875 (Okla. Crim. App. 1987). Since that time, Jackson has been no stranger to this court,

filing numerous applications for habeas relief.

       In August 2004, Jackson sought post-conviction relief before the OCCA, relying

on a recent decision from that court for relief, Johnson v. State, 93 P.3d 41 (Okla. Crim.

App. 2004). The OCCA dismissed Jackson’s petition on the basis that he failed to first

seek post-conviction relief before the state district court. As a result, Jackson attempted

to file an application for post-conviction relief before the District Court of Oklahoma

County. In a letter dated January 12, 2005, Judge Virgil C. Black, district judge for the

District Court of Oklahoma County, advised Jackson:

                      You continue to file documents in the District Court of
              Oklahoma County concerning your 1983 conviction.
                      Your case has been appealed to the Oklahoma Court of
              Criminal Appeals and affirmed, post conviction relief has
              been denied and appealed to the Oklahoma Court of Criminal
              Appeals and affirmed. From the various docket sheets
              available to me it appears you have as many as five post-
              convictions and numerous other filings.
                      This is your final notice. You have exhausted all
              remedies in the District Court of Oklahoma County. Do not
              file any additional pleadings on your convictions is [sic] this
              courthouse. I have reiterated my directions to the Oklahoma
              County Court Clerk to continue returning any other filings.
              Further violation of my previous order will result in sanctions.

Thereafter, the Oklahoma County Court Clerk returned Jackson’s application for post-

conviction relief.


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       On February 22, 2005, Jackson filed an “Emergency Petition for Transfer of State

Court Post-Conviction Relief Proceedings” in the United States District Court for the

Western District of Oklahoma. Jackson asserted that Judge Black denied him the ability

to pursue post-conviction relief based on Johnson v. State, and thus deprived him of his

due process and equal protection rights. Further, Jackson alleged that Judge Black

harbored a racial bias against him, necessitating that his state post-conviction proceedings

be “removed from the Oklahoma County District Court to the United States District Court

for the Western District of Oklahoma for review on the merits.”

       The district court referred the matter to a magistrate judge, who on April 11, 2005,

recommended that Jackson’s case be dismissed for lack of subject matter jurisdiction.

First, the magistrate judge determined that Jackson, as a party plaintiff, could not remove

his action. The magistrate judge further noted that it appeared that there was no pending

state court action to remove. Second, the magistrate judge stated that, to the extent

Jackson sought appellate review over the Oklahoma state courts, it did not possess such

supervisory jurisdiction or any mandamus authority to require the state district court to

accept Jackson’s post-conviction filing. The magistrate judge advised Jackson that the

appropriate avenue of relief was to file a petition for an extraordinary writ of mandamus

in the OCCA to compel the right to file a post-conviction application in state court.

Lastly, the magistrate judge declined to construe Jackson’s pleadings as seeking federal

habeas corpus relief or relief pursuant to 42 U.S.C. § 1983. The district court adopted the

magistrate judge’s report and recommendation in its entirety. In dismissing the matter,

                                             -4-
however, the district court characterized Jackson’s filing as a petition for habeas corpus

relief. Jackson subsequently filed two motions to proceed in forma pauperis on appeal, as

well as a motion to appoint counsel on appeal. On June 1, 2005, the district court denied

those motions after concluding that Jackson’s appeal was not taken in good faith and that

the issues presented were frivolous. Later that month, the district court denied Jackson’s

motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b). On August 17, 2005,

we consolidated the appeals from these decisions.

       On appeal, Jackson reasserts that his state court post-conviction proceedings must

be removed to federal court because of the state court judge’s racial bias against him.

Jackson maintains that the state courts have completed the handling of his case, and that

he has no other remedy available other than removal. We agree with the well-reasoned

report and recommendation of the magistrate judge, subsequently adopted by the district

court. There is no state action to remove because Jackson was not allowed to file his

petition for post-conviction relief in the first instance. Further, the right of removal is

available only to defendants, and therefore Jackson may not remove his own action from

state court to federal court. To the extent Jackson seeks habeas relief, he has not

exhausted his state remedies. As the magistrate judge pointed out, Jackson has not sought

relief before the OCCA to compel the state district court to accept his post-conviction

relief application.

       Accordingly, we AFFIRM the district court’s dismissal of Jackson’s

“Emergency Petition for Transfer of State Court Post-Conviction Relief Proceedings,”

                                              -5-
Case No. 05-6184, for lack of jurisdiction. We also AFFIRM the district court’s denial of

Jackson’s motion to proceed in formal pauperis, Case No. 05-6199, and the denial of

Jackson’s motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b), Case No. 05-

6237. Jackson’s motion to supplement the record with removal notices in Case Nos. 05-

6184 and 05-6199 is GRANTED, and Jackson’s motion to proceed in forma pauperis in

Case Nos. 05-6184 and 05-6199 is DENIED.


                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




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