                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   January 18, 2018
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court



JOSEPH MACASTLE JACKSON,

             Petitioner - Appellant,

v.                                                     No. 17-6137
                                                (D.C. No. 5:17-CV-00183-C)
TRACY McCOLLUM, Warden, North                          (W.D. Okla.)
Fork Correctional Center,

             Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before MATHESON, KELLY, and MURPHY, and 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 an entitlement to immediate release

from imprisonment. As thoroughly explained by the Magistrate Judge in her

Report and Recommendation, which report and recommendation was adopted by

the district court, 28 U.S.C. § 636(b)(1)(B), Jackson’s asserted entitlement to

immediate release is based on a misreading of Oklahoma law. In particular, the

provision of Oklahoma law defining “life imprisonment” as “a period of not less

than eighteen (18) years nor more than sixty (60) years” was repealed before it

ever took effect. Thus, at all relevant points in time, a life sentence in Oklahoma

meant a term of imprisonment for the remainder of the convicted individual’s

natural life.

       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). In

evaluating a request for a COA, it is not the role of this court to engage in a “full

consideration of the factual or legal bases adduced in support of the claims.” Id.

Instead, this court undertakes “a preliminary, though not definitive, consideration

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of the [legal] framework” applicable to each claim. Id. at 338. Jackson is not

required to demonstrate his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of

mere good faith.” Id. (quotations omitted).

      The district court’s resolution of this case is indisputedly correct. The

entire basis for Jackson’s § 2241 habeas petition is a provision of law that never

went into effect in Oklahoma. Thus, Jackson’s sentence of life imprisonment

expires only upon the end of his natural life and any potential grant of parole is

entirely within the discretion of the Oklahoma Pardon and Parole Board. See

Boutwell v. Keating, 399 F.3d 1203, 1213-15 (10th Cir. 2005) (holding that

because Oklahoma’s parole system is entirely discretionary, Oklahoma has not

created a liberty interest in parole protectable by the Due Process Clause).

Because Jackson’s petition is wholly meritless, this court denies his request for

appointment of appellate counsel. 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.




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      This court DENIES Jackson’s request for a COA and DISMISSES this

appeal.

                                     ENTERED FOR THE COURT


                                     Michael R. Murphy
                                     Circuit Judge




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