UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOSEPH MACASTLE JACKSON, 

 Petitioner - Appellant, 

v. 

MARK BOWEN, 

 Respondent - Appellee. 

No. 22-6068 

(D.C. No. 5:22-CV-00083-C) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, BRISCOE, and EID, Circuit Judges. 

_________________________________ 

Joseph M. Jackson, an Oklahoma prisoner representing himself, seeks to appeal 

the dismissal of his most recent application for habeas relief.1

 We deny his request for a 

certificate of appealability (COA). Aside from seeking a COA, Mr. Jackson appeals the 

district court’s order denying his motion to appoint counsel, and we affirm that order. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. 

1

 We construe Mr. Jackson’s pro se filings liberally. See Hall v. Bellmon, 

935 F.2d 1106, 1110 (10th Cir. 1991). 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 16, 2022

Christopher M. Wolpert 

Clerk of Court

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I. Background 

Mr. Jackson is serving a life sentence for a 1983 murder. See Jackson v. State, 

741 P.2d 875, 875–76 (Okla. Crim. App. 1987). The current proceedings began when he 

filed an application styled as one seeking habeas relief under 28 U.S.C. § 2241. He 

argued that Oklahoma lacked jurisdiction to prosecute him because he is “an Indian” and 

his crimes occurred within the boundaries of the Muscogee Nation. R. at 10. Despite the 

title of his application, however, the district court concluded that Mr. Jackson could 

pursue his claim only under 28 U.S.C. § 2254, not § 2241. And because Mr. Jackson had 

previously sought relief under § 2254, the district court dismissed his current application, 

concluding that it lacked jurisdiction over the merits of a second or successive § 2254 

application. 

II. Discussion 

A. COA Application 

To appeal the dismissal of his habeas application, Mr. Jackson needs a COA. See

28 U.S.C. § 2253(c)(1)(A). We may grant a COA if he shows that jurists of reason 

would find it debatable whether his application “states a valid claim of the denial of a 

constitutional right, and that jurists of reason would find it debatable whether the district 

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). 

We need not consider whether Mr. Jackson’s application states a valid constitutional 

claim because the district court’s procedural ruling is not debatable. 

A district court lacks jurisdiction over the merits of a second or successive § 2254 

application unless the prisoner has received authorization to file the application from the 

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appropriate court of appeals. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) 

(per curiam). Mr. Jackson maintains that his most recent habeas application did not need 

prior authorization, however, because it sought relief under § 2241, not § 2254. Not so. 

His jurisdictional claim attacks the validity of his conviction and sentence, so reasonable 

jurists could not debate the district court’s conclusion that the claim falls under § 2254.2

 

See Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir. 2008). 

But even if his claim falls under § 2254, Mr. Jackson says, it is not second or 

successive. That is so, he argues, because there have been important recent changes in 

the law and because he now challenges a new judgment. Changes in the law, however, 

do not alter the fact that he has already challenged his state judgment under § 2254. It is 

true, though, that a habeas application will not be considered second or successive if it is 

the first to challenge a particular judgment, even if the prisoner has previously filed other 

applications challenging earlier judgments. See Magwood v. Patterson, 561 U.S. 320, 

331–33 (2010). For example, if a prisoner obtains habeas relief that vacates a judgment 

and the state later obtains a new judgment, the prisoner’s first § 2254 challenge to the 

new judgment will not be considered second or successive. See id. at 332–33. 

Mr. Jackson attempts to take advantage of this rule, pointing to a recent decision in his 

case from the Oklahoma Court of Criminal Appeals. But Mr. Jackson’s case does not fit 

2

 To the extent Mr. Jackson argues that the limits on second or successive 

§ 2254 applications do not apply to jurisdictional claims, he is incorrect. See Prost v. 

Anderson, 636 F.3d 578, 592 (10th Cir. 2011) (recognizing that “lack of jurisdiction 

is not one of the two authorized grounds upon which a successive § 2254 motion may 

be filed”). 

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under Magwood’s rule because the state decision he cites affirmed the denial of 

postconviction relief. R. at 127–29. In other words, the decision left his judgment 

undisturbed. No reasonable jurist could debate the conclusion that Mr. Jackson’s current 

application is a second or successive one. 

Having correctly concluded that Mr. Jackson filed an unauthorized second or 

successive § 2254 application, the district court had two options: dismiss the application 

for lack of jurisdiction or transfer it to this court.3

 See Cline, 531 F.3d at 1252. Transfer 

is appropriate when it furthers the interests of justice. Id. The district court declined to 

transfer Mr. Jackson’s application based on its conclusion that he would not receive 

authorization to pursue his claim in a second or successive § 2254 application. A claim 

will receive such authorization “only if it falls within one of two narrow categories—

roughly speaking, if it relies on a new and retroactive rule of constitutional law or if it 

alleges previously undiscoverable facts that would establish [the prisoner’s] innocence.” 

Banister v. Davis, 140 S. Ct. 1698, 1704 (2020); see also 28 U.S.C. § 2244(b)(2). 

Mr. Jackson does not dispute that his claim does not rely on a new and retroactive 

rule of constitutional law, but he argues that the district court should have considered 

3

 Contrary to Mr. Jackson’s argument, the district court did not have “inherent 

equitable powers” to address the merits of his unauthorized second or successive 

§ 2254 application. COA Appl. at 16. True, the Antiterrorism and Effective Death 

Penalty Act of 1996 “will not constrain a court’s authority to employ its inherent 

equitable powers if the court is acting on its own initiative, rather than upon the 

application filed by the petitioner.” United States v. Williams, 790 F.3d 1059, 1073 

(10th Cir. 2015). Here, though, any action on the merits of Mr. Jackson’s claim 

would have been based on his application. 

 

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whether his claim alleges previously undiscoverable facts showing his innocence. He 

implies that the decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), revealed a 

previously undiscoverable fact: that Oklahoma lacked jurisdiction to prosecute him. But 

McGirt’s holding is not a previously undiscoverable factual predicate for Mr. Jackson’s 

claim; it is a legal conclusion. Reasonable jurists could not debate the propriety of the 

district court’s discretionary decision to dismiss Mr. Jackson’s application rather than 

transfer it. 

The Supreme Court has foreclosed Mr. Jackson’s remaining argument against the 

dismissal of his application—that it violates the Suspension Clause. See Felker v. Turpin, 

518 U.S. 651, 664 (1996). 

In sum, reasonable jurists could not debate whether the district court correctly 

dismissed Mr. Jackson’s habeas application for lack of jurisdiction. So we deny his 

application for a COA. 

B. Motion to Appoint Counsel

Mr. Jackson does not need a COA to appeal the district court’s order denying his 

motion to appoint counsel. See Harbison v. Bell, 556 U.S. 180, 183 (2009). “The 

decision to appoint counsel is left to the sound discretion of the district court.” Engberg 

v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). The district court did not abuse its 

discretion when it denied Mr. Jackson’s motion to appoint counsel. After all, the court 

lacked jurisdiction even to address the merits of his habeas application. 

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III. Conclusion 

 We deny Mr. Jackson’s motion to proceed without prepaying costs or fees because 

he has not presented “a reasoned, nonfrivolous argument on the law and facts.” 

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). We affirm the district 

court’s denial of Mr. Jackson’s motion to appoint counsel. We deny his application for a 

COA and dismiss the balance of this matter. 

Entered for the Court 

Per Curiam 

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