UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MICHAEL MCCALISTER, 

 Defendant - Appellant. 

No. 15-5110 

(D.C. Nos. 4:15-CV-00072-TCK-TLW & 

4:99-CR-00020-TCK-1) 

(N.D. Okla.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges. 

 

 Michael McCalister, a federal prisoner proceeding pro se, seeks a certificate of 

appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2255 

motion as being an unauthorized second or successive § 2255 motion. We deny a 

COA and dismiss this matter. 

Background 

McCalister was convicted in 1999 of conspiracy to possess with intent to 

distribute controlled substances in violation of 21 U.S.C. § 846. He since has filed 

several challenges to his conviction, including a § 2255 motion and other motions. 

 

*

 This order is not binding precedent except under the doctrines of law of the case, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 16, 2016

Elisabeth A. Shumaker 

Clerk of Court
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Most recently, in June 2012 he filed a § 2255 motion that the district court dismissed 

as being an unauthorized second or successive motion. This court denied a COA and 

denied McCalister authorization to pursue the claims. See United States v. 

McCalister, 545 F. App’x 718, 722-23 (10th Cir. 2013) (unpublished). 

 In 2015, McCalister filed a new § 2255 motion, which was based on events 

after McCalister’s trial involving the alleged kingpins of the conspiracy. McCalister 

asserted that in May 2005 the district court allowed the dismissal of the indictment 

against John Torrence, who then pleaded guilty to a lesser offense. McCalister 

complained that the record showed neither that the government moved for the 

dismissal of the indictment nor that the district court stated reasons for the dismissal. 

McCalister also stated that in October 2009 the government moved under 

Fed. R. Crim. P. 48(a) to dismiss the indictment (without prejudice) against 

Orlando Mackey, who was a fugitive. McCalister complained that the Rule 48(a) 

motion gave no reasons for dismissing the indictment against Mackey, and the 

district court improperly granted the motion without requiring the government to 

supply its reasons. 

In light of these events, McCalister sought to pursue claims of selective 

prosecution, prosecutorial misconduct, and judicial bias. He asserted that the factual 

basis for his claims did not exist until October 2014, because that is when the 

limitations period expired for filing a new indictment against Mackey. Noting that 

McCalister already had filed at least three § 2255 motions, the district court 
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concluded that the new motion was an unauthorized second or successive § 2255 

motion. It declined to transfer the motion to this court for authorization and instead 

dismissed it for lack of jurisdiction. 

McCalister timely filed a Fed. R. Civ. P. 59(e) motion, arguing that his motion 

was not properly considered second or successive because his claims were not ripe at 

the time he filed any of his previous § 2255 motions. The district court summarily 

denied the motion and then denied McCalister’s motions for a COA and to proceed 

without prepayment of costs and fees.1

Analysis 

 McCalister must have a COA to appeal. See United States v. Harper, 545 F.3d 

1230, 1233 (10th Cir. 2008). For a COA, he must show both “that jurists of reason 

would find it debatable whether the petition 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, 

484 (2000). 

McCalister asserts that his claims are not second or successive because this is 

the first time he has brought them. He is incorrect. Once a federal prisoner has 

 

1

 McCalister argues that the district court’s orders dismissing his § 2255 motion and 

his Rule 59(e) motion were insufficient to allow appellate review. We disagree. The 

order dismissing the § 2255 motion was brief, but adequate, and the minute order 

denying the Rule 59(e) motion was not improper. McCalister misapprehends the 

authorities he cites for the proposition that the district court could not deny his 

Rule 59(e) motion without explanation. 
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pursued relief under § 2255, most subsequent claims, even ones that were never made 

before, are second or successive claims. There are some exceptions, one of which 

McCalister has invoked before and again cites in this case: claims that were not ripe 

at the time of the first § 2255 motion are not properly considered second or 

successive claims, see Panetti v Quarterman, 551 U.S. 930, 947 (2007); In re 

Weathersby, 717 F.3d 1108, 1110-11 (10th Cir. 2013) (per curiam). But we need not 

consider when McCalister’s claims became ripe, and thus whether reasonable jurists 

could debate the procedural ruling, because it is not debatable whether the § 2255 

motion stated a valid claim of the denial of a constitutional right. 

The motion presented three claims. First, McCalister asserted that prosecuting 

him, but then allowing Torrence to plead guilty to a lesser offense and dismissing the 

indictment against Mackey, constituted selective prosecution, in violation of his right 

to equal protection. Although prosecutors enjoy broad discretion, “[such] discretion 

is subject to constitutional constraints.” United States v. Armstrong, 517 U.S. 456, 

464 (1996) (internal quotation marks omitted). “One of these constraints, imposed 

by the equal protection component of the Due Process Clause of the Fifth 

Amendment, is that the decision whether to prosecute may not be based on an 

unjustifiable standard such as race, religion, or other arbitrary classification.” Id.

(citation and internal quotation marks omitted). To proceed with a 

selective-prosecution claim, “[t]he claimant must demonstrate that the federal 

prosecutorial policy had a discriminatory effect and that it was motivated by a 
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discriminatory purpose.” Id. at 465 (internal quotation marks omitted). This 

standard is a “demanding one.” Id. at 463. 

McCalister, however, failed to identify any “unjustifiable standard,” such as 

race or religion, or “arbitrary classification” involved in the government’s decisions. 

He simply alleged that years after his conviction, Torrence and Mackey were treated 

more favorably than he was, even though they were more criminally responsible. His 

allegations demonstrated neither a discriminatory effect nor a discriminatory purpose 

sufficient to proceed with a selective-prosecution claim. See id. at 465 (“In order to 

dispel the presumption that a prosecutor has not violated equal protection, a criminal 

defendant must present clear evidence to the contrary.” (internal quotation marks 

omitted)). No reasonable jurist could debate the validity of this claim.2

 

Second, McCalister argued that the prosecutor committed misconduct (1) by 

violating McCalister’s right to equal protection through selective prosecution, and 

(2) by dismissing the indictment against Mackey to prevent McCalister from 

discovering evidence about police misconduct, evidence that would help him 

challenge his own conviction. As discussed above, McCalister failed to state a 

plausible claim of selective prosecution, and therefore the related allegation of 

 

2

 We recognize that McCalister unsuccessfully moved the district court to explain its 

orders regarding Torrence and Mackey. Even to obtain discovery, however, a 

claimant must present “some evidence that similarly situated defendants” who do not 

share the claimant’s characteristic (e.g., race) “could have been prosecuted, but were 

not.” Armstrong, 517 U.S. at 469. Having failed to identify any unjustifiable 

standard or arbitrary classification, much less present any evidence of such, 

McCalister failed to meet this “rigorous standard.” Id. at 468. 
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misconduct cannot proceed. And the allegations regarding a cover-up were mere 

speculation and conjecture, unsupported by any evidence. No reasonable jurist could 

debate whether McCalister stated a valid claim of prosecutorial misconduct. 

Finally, McCalister asserted that the district court’s decisions favoring 

Torrence and Mackey, without requiring the government to provide reasons in either 

situation, demonstrated judicial bias. But as with the other claims, no reasonable 

jurist could debate this issue. It is well-established that judicial rulings alone 

generally are insufficient to establish bias, see Liteky v. United States, 510 U.S. 540, 

555 (1994); United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993), as are the 

“speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar 

non-factual matters” that underlie McCalister’s allegations, Cooley, 1 F.3d at 993. 

Conclusion 

 McCalister’s motion to proceed without prepayment of costs and fees is 

granted, but McCalister remains obligated to pay costs and fees in full. A COA is 

denied and this matter is terminated. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk