Jackson v. McCollum ( 2014 )

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