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

                            TENTH CIRCUIT                    December 12, 2014

                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court

JOSEPH MACASTLE JACKSON,

            Petitioner - Appellant,
      v.                                           No. 14-6175
                                                 (W.D. Oklahoma)
TRACY MCCOLLUM, Warden,                     (D.C. No. 5:13-CV-00147-C)

            Respondent - Appellee.



   ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
                DISMISSING THE APPEAL


Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.



     This appeal grew out of an application for habeas relief by Mr.

Joseph Jackson. In the application, he alleged an Eighth Amendment

violation from a regulatory restriction on transfer to community

confinement. The district court dismissed the application without

prejudice, holding alternatively that the claim would not support habeas

relief and was not exhausted.

     Mr. Jackson requests a certificate of appealability to appeal the

denial of habeas relief. Because no reasonable jurist would find the claim
exhausted, we hold that Mr. Jackson is not entitled to a certificate of

appealability. Thus, we dismiss the appeal.

               Standard for a Certificate of Appealability

      To appeal, Mr. Jackson needs a certificate of appealability. 28

U.S.C. § 2253(c)(1)(A). For the certificate, Mr. Jackson must show that

reasonable jurists could find the district court’s ruling on exhaustion

debatable or wrong. See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir.

2007).

                 Exhaustion of Administrative Remedies

      Administrative remedies must be exhausted before the filing of a

habeas application. Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010).

      The state department of corrections provided a grievance procedure.

Under this procedure, Mr. Jackson could file a grievance. He took

advantage of this option by filing a grievance.

      Under the procedure, the warden was to decide the grievance. The

warden did so, instructing Mr. Jackson that the grievance had to be

corrected because it addressed multiple issues.

      At that point, Mr. Jackson could correct and resubmit the grievance

or he could appeal. Notwithstanding this opportunity, Mr. Jackson failed

to act. Thus, Mr. Jackson did not exhaust all of the available

administrative remedies.



                                      2
      Mr. Jackson argues that exhaustion would be futile. We disagree, for

exhaustion is not futile when further administrative review is available.

Id. at 1204. Review would have been available if Mr. Jackson had

corrected the grievance or filed an administrative appeal. Thus, we deny a

certificate of appealability and dismiss the appeal. 1

                                In Forma Pauperis

      Mr. Jackson seeks not only a certificate of appealability, but also

leave to proceed in forma pauperis. Because we have dismissed the appeal,

the application for pauper status is dismissed on the ground of mootness.

Johnson v. Keith, 726 F.3d 1134, 1136 (10th Cir. 2013) (denying leave to

proceed in forma pauperis on the ground of mootness upon denial of a

certificate of appealability)

                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




1
      Because the habeas claim is unexhausted, we need not reach the
district court’s alternative conclusion that the allegations were not
cognizable as a habeas claim.
                                        3
