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

                           FOR THE TENTH CIRCUIT                      November 28, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JOSEPH M. JACKSON,

             Petitioner-Appellant,

v.                                              Nos. 12-5089, 12-5100 & 12-5110
                                              (D.C. No. 4:11-CV-00507-GKF-FHM)
JANE STANDIFIRD, Warden,                                   (N.D. Okla.)

             Respondent-Appellee.


           ORDER DENYING CERTIFICATE OF APPEALABILITY
                              AND
                     ORDER AND JUDGMENT*


Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.


      This case involves three pro se appeals that we consolidate for procedural

purposes only. In case numbers 12-5089 and 12-5100, Joseph M. Jackson, an

Oklahoma state prisoner, seeks a certificate of appealability (COA) to appeal the

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.

        Case numbers 12-5089 and 12-5100 are being addressed in the order denying a
certificate of appealability. Case number 12-5110 is being addressed in the order and
judgment. The court is disposing of all three appeals—which contain intertwined and
overlapping issues—in a single decision for judicial efficiency.
district court’s dismissal of his 28 U.S.C. § 2241 habeas petition and denial of his

Fed. R. Civ. P. 59(e) motion to alter or amend the district court’s habeas judgment.

See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding that a state

prisoner must obtain a COA to appeal the denial of a § 2241 habeas petition);

Dulworth v. Jones, 496 F.3d 1133, 1136 (10th Cir. 2007) (holding that “all appeals

from final orders in habeas cases, of whatever type, should be required to meet the

COA standard to proceed”). In case number 12-5110, Mr. Jackson appeals the

district court’s denial of his post-judgment motion for bail pending adjudication of

his application for a COA. We deny Mr. Jackson’s request for a COA, dismiss case

numbers 12-5089 and 12-5100, and dismiss case number 12-5110 as moot.

                                   BACKGROUND

      Mr. Jackson is serving a life sentence for first-degree murder and a concurrent

five-year sentence for conspiracy to commit murder. He was convicted in 1983 and

has been denied parole five times—in 1999, 2002, 2005, 2008, and 2011. After

exhausting state court remedies, Mr. Jackson filed a § 2241 petition, arguing that he

has been denied parole in violation of his constitutional rights to due process and

equal protection. He asserted (1) the parole board’s action was an abuse of

discretion, infringing upon his due process right to be free from arbitrary government

action; (2) the Oklahoma legislature’s use of the word “may” in the statute governing

parole, Okla. Stat. tit. 57, § 365, is synonymous with “shall” or “must,” resulting in




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the creation of a protectable liberty interest; and (3) he was denied parole in violation

of the equal protection clause.1

      The district court denied § 2241 relief on the merits, and it denied a COA.

Mr. Jackson filed a Rule 59(e) motion to alter or amend judgment, which the district

court denied. He then filed a post-judgment motion for bail pending appeal, which

the district court also denied. Mr. Jackson challenges all three decisions.

                       CASE NUMBERS 12-5089 & 12-5100

      Mr. Jackson seeks a COA to appeal the denial of § 2241 and Rule 59(e) relief,

restating—often, verbatim—the arguments he made in the district court. To receive a

COA, Mr. Jackson must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To make that showing, he must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (internal quotation marks omitted). Where, as here, “a district court

has rejected the constitutional claims on the merits, the showing required to satisfy

§ 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or


1
       Mr. Jackson raised arguments one and three in the brief accompanying his
original § 2241 petition. He raised argument two in the brief accompanying his
amended motion to amend his § 2241 petition, which motion the district court
granted.


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wrong.” Id. In evaluating whether Mr. Jackson has carried his burden, we undertake

“a preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).

We review legal issues de novo and the district court’s factual findings for clear

error. United States v. Eccleston, 521 F.3d 1249, 1253 (10th Cir. 2008).

      We liberally construe Mr. Jackson’s pro se filings. Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam). But as detailed below, Mr. Jackson fails to

demonstrate that he is entitled to a COA.

Due Process

      Mr. Jackson continues to assert that the parole board’s action was an abuse of

discretion, contravening his due process right to be free from arbitrary government

action. On this point, the district court concluded that Mr. Jackson does not have a

liberty interest in parole and that as a result, he cannot make a claim for a denial of

procedural or substantive due process. We agree. See Shabazz v. Keating, 977 P.2d

1089, 1093 (Okla. 1999) (“[T]here is no protectible liberty interest in an Oklahoma

parole.”); see also Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir. 1979) (“[T]he

Oklahoma statutory scheme . . . does no more than create a parole system, which in

the Supreme Court’s view . . . does not establish a liberty interest.”); Fristoe v.

Thompson, 144 F.3d 627, 630 (10th Cir. 1998) (“To make out a due process claim,

appellant must assert the infringement of a protected liberty interest.”).




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      The district court then rejected Mr. Jackson’s various complaints that the

parole board acted arbitrarily and impermissibly by erroneously omitting an

explanation for its 2011 parole denial, by treating him differently than similarly

situated inmates, and by sentencing him a second time. The district court’s analysis,

that Mr. Jackson failed to demonstrate he was denied parole for an arbitrary or

unconstitutional reason, is also sound:

              In Oklahoma, “there are no written criteria for parole release to
      guide the Parole Board members in their determinations.” Shirley,
      603 F.2d at 807. “The Board’s only statutory guidance in the exercise
      of its discretion is that it act as the public interest requires, and the sole
      existing statutory criteria dictate only the time of parole consideration.”
      Id. In addition, the Board does not give reasons for denial of parole.
      Id.; see also Phillips v. Williams, 608 P.2d 1131, 1135 (Okla. 1980).

Jackson v. Standifird, No. 11-CV-507-GKF-FHM, 2012 WL 1582247, at *3

(N.D. Okla. May 4, 2012) (unpublished).

      Mr. Jackson also submits, as he did in the district court, that the Oklahoma

legislature’s use of the word “may” in Okla. Stat. tit. 57, § 365, means “shall” or

“must,” resulting in the creation of a constitutionally cognizable liberty interest, the

threshold requirement for alleging “an unconstitutional deprivation of that interest,”

PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1199 (10th Cir. 2010).2 Like the district

court, we hold this argument meritless. See, e.g., MLC Mortg. Corp. v. Sun Am.



2
       Section 365 provides that Oklahoma prisoners who meet certain stated
guidelines “may be considered by the Pardon and Parole Board for a specialized
parole . . . .” Okla. Stat. tit. 57, § 365.A.


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Mortg. Co., 212 P.3d 1199, 1204 n.17 (Okla. 2009) (“The term ‘may’ is ordinarily

construed as permissive while ‘shall’ is commonly considered to be mandatory.”).

Equal Protection

       Next Mr. Jackson, who is black and was convicted of murdering someone who

was white, repeats his claim that parole authorities treated him differently than

inmates convicted of murder whose victims were not white. He states that he has

served 28 years in prison for first-degree murder and asserts that other inmates

convicted of first-degree murder have obtained parole in 22 ½ years. The district

court concluded that Mr. Jackson’s claim, “even if true, provide[d] no factual support

for the legal basis of an equal protection claim, i.e., that any difference in treatment is

not related to a legitimate penological purpose but is, instead, the result of unlawful

discrimination.” Jackson, 2012 WL 1582247, at *3. Here too, we agree with the

district court’s disposition. “[B]are equal protection claims are simply too

conclusory to permit a proper legal analysis.” Straley v. Utah Bd. of Pardons,

582 F.3d 1208, 1215 (10th Cir. 2009).

       Moreover, Mr. Jackson’s allegation that the district court erred by not granting

his motion for a court-appointed attorney is without merit. Given the district court’s

disposition of Mr. Jackson’s § 2241 petition, its dismissal of the motion was proper.

Fed. R. Civ. P. 59(e) Motion to Alter or Amend Judgment

       Mr. Jackson also contends that the district court erred when it denied his Rule

59(e) motion, arguing, among other things, that the court “may” have misunderstood


                                           -6-
the facts or his arguments. But the district court denied the motion because

Mr. Jackson did not show any of the grounds warranting Rule 59(e) relief: “an

intervening change in the controlling law,” new evidence previously unavailable, or

“the need to correct clear error or prevent manifest injustice.” Servants of the

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). We discern no error in this

determination.

      After reviewing all of the pertinent materials in case numbers 12-5089 and

12-5100, we conclude that Mr. Jackson has not demonstrated “that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484. We therefore deny Mr. Jackson’s request for a COA

and dismiss case numbers 12-5089 and 12-5100.

                              CASE NUMBER 12-5110

      Having denied a COA in case numbers 12-5089 and 12-5100, we hold that

Mr. Jackson’s appeal of the district court’s denial of his post-judgment motion for

bail pending the adjudication of his request for a COA is moot, and we dismiss

appeal number 12-5110.3




3
       We note that even though case number 12-5110 is an appeal from the district
court’s denial of bail pending appeal, much of Mr. Jackson’s appellate brief is a
verbatim restatement of his combined brief and application for a COA filed in case
numbers 12-5089 and 12-5100, which we have denied herein.


                                          -7-
                                 CONCLUSION

      For the foregoing reasons, Mr. Jackson’s request for a COA is denied and case

numbers 12-5089 and 12-5100 are dismissed. Case number 12-5110 is dismissed as

moot. All outstanding motions are denied.


                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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