UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHAEL MCCALISTER,
De fendant - 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 pr oceeding pro se, seeks a certificate of appealability (COA) to appeal the district court’s dismi ssal 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 cons piracy 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, in cluding a § 2255 motion and other motions.

* This order is not binding precedent exce pt under the doctrines of law of the case, res judicata, and collateral estoppel.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. A pp. 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- 2 - Most recently, in June 2012 he filed a § 2255 motion that the district court dismissed as being an unauthorized second or success ive motion. This court denied a COA and denied McCalister authoriza tion to pursue the claims. See United States v. McCalister , 545 F. App’x 718, 722-23 (10t h Cir. 2013) (unpublished). In 2015, McCalister filed a new § 22 55 motion, which was based on events after McCalister’s trial involvi ng the alleged kingpins of the conspiracy. McCalister asserted that in May 2005 the district cour t allowed the dismissal of the indictment against John Torrence, who then pleaded gu ilty to a lesser offense. McCalister complained that the record showed neither that the government moved for the dismissal of the indictment nor that the distri ct court stated reasons for the dismissal. McCalister also stated that in October 2009 th e government moved under Fed. R. Crim. P. 48(a) to dismiss th e indictment (without prejudice) against Orlando Mackey, who was a fugitive. McCa lister complained that the Rule 48(a) motion gave no reasons for dismissing th e 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 pursu e claims of selective prosecution, prosecutorial miscon duct, and judicial bias. He asserted that the factual basis for his claims did not exist until October 2014, b ecause that is when the limitations period expired for filing a new i ndictment against Mackey. Noting that McCalister already had filed at least th ree § 2255 motions, the district court- 3 - concluded that the new motion was an unauthorized second or successive § 2255 motion. It declined to tran sfer 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, ar guing that his motion was not properly considered se cond or successive because hi s claims were not ripe at the time he filed any of his previous § 2 255 motions. The district court summarily denied the motion and then denied McCalis ter’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 s how both “that jurists of reason would find it debatable whethe r 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 su ccessive because this is the first time he has brought them. He is incorrect. Once a federal prisoner has

1 McCalister argues that the district c ourt’s orders dismissi ng his § 2255 motion and his Rule 59(e) motion were insufficient to a llow appellate review. We disagree. The order dismissing the § 2255 motion was brie f, but adequate, and the minute order denying the Rule 59(e) motion was not im proper. McCalister misapprehends the authorities he cites for the proposition that the district court could not deny his Rule 59(e) motion without explanation.- 4 - pursued relief under § 2255, most subsequent claims, even ones that were never made before, are second or successi ve 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 cl aims became ripe, and thus whether reasonable jurists could debate the procedural ruling, because it is not debatable whether the § 2255 motion stated a valid clai m of the denial of a constitutional right. The motion presented three claims. First, McCalister asserted that prosecuting him, but then allowing Torrence to plead gu ilty to a lesser offense and dismissing the indictment against Mackey, c onstituted selective prosecution, in violation of his right to equal protection. Althou gh prosecutors enjoy broad di scretion, “[such] discretion is subject to constitu tional constraints.” United States v. Armstrong , 517 U.S. 456, 464 (1996) (internal quotati on marks omitted). “One of these constraints, imposed by the equal protection component of th e Due Process Clau se of the Fifth Amendment, is that the decision whethe r to prosecute may not be based on an unjustifiable standard such as race, religi on, or other arbitrary classification.” Id. (citation and internal quotation mark s omitted). To proceed with a selective-prosecution claim, “[t]he claima nt must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a- 5 - 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 “arbitr ary classification” involved in the government’s decisions. He simply alleged that year s after his conviction, Torren ce and Mackey were treated more favorably than he was, even though they were more criminally responsible. His allegations demonstrated neither a discrimina tory effect nor a discriminatory purpose sufficient to proceed with a se lective-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.” (inter nal quotation marks omitted)). No reasonable jurist could debate the validity of this claim. 2 Second, McCalister argued that the pr osecutor committed misconduct (1) by violating McCalister’s right to equal protection through selective prosecution, and (2) by dismissing the indictment agains t Mackey to preven t McCalister from discovering evidence about police miscond uct, evidence that would help him challenge his own conviction. As discussed above, McCa lister failed to state a plausible claim of selectiv e 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 situ ated defendants” who do not share the claimant’s character istic (e.g., race) “could have been prosecuted, but were not.” Armstrong , 517 U.S. at 469. Having fa iled to identify any unjustifiable standard or arbitrary classification, much less present a ny evidence of such, McCalister failed to meet th is “rigorous standard.” Id. at 468.- 6 - misconduct cannot proceed. And the allega tions regarding a cover-up were mere speculation and conjecture, unsupported by a ny evidence. No reasonable jurist could debate whether McCalister stated a va lid claim of prosecutorial misconduct. Finally, McCalister asserted that th e district court’s decisions favoring Torrence and Mackey, without requiring the gove rnment to provide reasons in either situation, demonstrated judi cial bias. But as with th e other claims, no reasonable jurist could debate this issu e. 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 (10t h Cir. 1993), as are the “speculation, beliefs, conclusions, i nnuendo, suspicion, opinion, and similar non-factual matters” that under lie 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 ma tter is terminated.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk