                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     March 22, 2016
                   UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 JOSEPH MACASTLE JACKSON,

       Petitioner - Appellant,

 v.                                                     No. 16-6009
                                                 (D.C. No. 5:13-CV-00147-C)
 TRACY McCOLLUM, Warden;                                (W.D. Okla.)
 OKLAHOMA DEPARTMENT OF
 CORRECTIONS; JUSTIN JONES,
 Director,

       Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HOLMES, and MORITZ, Circuit Judges.


      Petitioner-Appellant Joseph Macastle Jackson, an Oklahoma state inmate

appearing pro se, seeks a certificate of appealability (“COA”) allowing him to

appeal the denial of his motion to reinstate his 28 U.S.C. § 2241 habeas

application that the district court dismissed in 2014. We deny his request for a

COA and dismiss this appeal.

      In 2013, Mr. Jackson alleged that his Eighth Amendment rights were

violated by an Oklahoma Department of Corrections regulation prohibiting his

transfer to a lower security facility. The district court dismissed his application
without prejudice, adopting the magistrate judge’s supplemental report and

recommendation that Mr. Jackson had no remedy under § 2241, and alternatively,

that he failed to exhaust available Oklahoma Department of Corrections

administrative remedies. Jackson v. McCollum, No. CIV-13-147-C, 2014 WL

3689671 (W.D. Okla. July 23, 2014). We denied a COA, finding that his claims

were not exhausted and refusing to reach the merits. Jackson v. McCollum, 587

F. App’x 502 (10th Cir. 2014) (unpublished), cert. dismissed, 136 S. Ct. 101

(2015). Nearly a year later, Mr. Jackson attempted to properly exhaust, but

corrections officials denied his appeal as untimely. 1 R. 29.

      Mr. Jackson now seeks to reinstate his § 2241 application, arguing that his

failure to exhaust should be overlooked. The district court summarily denied his

motion to reinstate noting that it was “without legal or factual foundation.” Id. at

144. On appeal, Mr. Jackson recounts his efforts to exhaust and argues for relief

on the merits.

      To proceed, Mr. Jackson must obtain a COA. See Montez v. McKinna, 208

F.3d 862, 867 (10th Cir. 2000). He is entitled to a COA only upon making “a

substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), or put differently, that “jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further,” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003).

                                         -2-
      Mr. Jackson attempts to satisfy this standard by arguing that while he did

not exhaust his grievance, the process’s instructions and procedures are, in

essence, vague, confusing, and unfair. Aplt. Br. at 14–37. Giving his pro se

pleadings their mandated liberal construction, we construe Mr. Jackson’s

arguments to be both that exhaustion was futile and that the lack of clarity

surrounding the grievance process should excuse his failure to comply with

procedural requirements.

      While we recognize futility as a narrow exception to the exhaustion

requirement, see Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010), this

exception no longer aids Mr. Jackson. It is now too late for him to register his

grievance with corrections officials. See 1 R. 30 (denying appeal out of time).

With no avenues left to pursue, Mr. Jackson has technically exhausted his claim,

see Coleman v. Thompson, 501 U.S. 722, 732 (1991), but he has failed to comply

with administrative requirements and his claims are thus barred by procedural

default, see Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 761 (3d Cir. 1996);

see also Pelts v. True, 132 F.3d 43 (10th Cir. 1997) (unpublished). His assertion

that the grievance process is confusing or unclear does not establish either

(1) cause and prejudice or (2) a fundamental miscarriage of justice — and one of

these is required to overcome a procedural default. See Magar v. Parker, 490

F.3d 816, 819 (10th Cir. 2007). No jurist of reason would find it debatable

whether the district court was correct in its ruling.

                                          -3-
      Accordingly, we DENY Mr. Jackson’s request for a COA and DISMISS

this appeal. Mr. Jackson’s application to proceed on appeal in forma pauperis and

his request for counsel are also DENIED.



                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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