FILED

United States Court of Appeals

Tenth Circuit

July 16, 2014

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT EARL JACKSON,

Petitioner - Appellant,

v.

ANITA TRAMMELL,

Respondent - Appellee.

No. 14-5041

(N.D. Oklahoma)

(D.C. No. 4:13-CV-00198-JHP-FHM)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before GORSUCH, MURPHY, and HOLMES, Circuit Judges. 

This matter is before the court on Robert Earl Jackson’s pro se request for a

certificate of appealability (“COA”). Jackson seeks a COA so he can appeal the

district court’s dismissal of his 28 U.S.C. § 2254 petition. See 28 U.S.C.

§ 2253(c)(1)(A). Because Jackson has not “made a substantial showing of the

denial of a constitutional right,” id. § 2253(c)(2), this court denies his request for

a COA and dismisses this appeal.

Jackson filed the instant § 2254 habeas petition challenging his Oklahoma

conviction in Tulsa County District Court, No. CF-1995-4408. The district court

concluded it lacked jurisdiction to consider the merits of Jackson’s § 2254

petition, no matter how that petition was construed. To the extent Jackson was
challenging his conviction in No. CF-1995-4408, the district court concluded it

lacked jurisdiction because Jackson was not “in custody” on that conviction. See

28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989). 

Alternatively, to the extent Jackson’s § 2254 petition could be generously

construed as challenging the Oklahoma state prison sentences imposed on him in

Tulsa County District Court, No. CF-2000-1569,1

 the district court concluded it

lacked jurisdiction because Jackson had already litigated the validity of No. CF2000-1569 in a previous § 2254 habeas petition. 28 U.S.C. § 2244(b)(3)

(providing a district court cannot consider a second or successive habeas petition

unless the petitioner has obtained authorization from this court to file such a

petition); In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam) (holding

that in the absence of § 2244(b)(3) authorization from this court, a district court

lacks jurisdiction to address the merits of a second or successive § 2254 habeas

petition).2

 Furthermore, because Jackson’s instant § 2254 petition did not present

any claim that appeared remotely likely to fall within the parameters of 28 U.S.C.

§ 2244(b)(2), the district court declined to transfer the petition to this court under

28 U.S.C. § 1631. Cline, 531 F.3d at 1252 (“When a second or successive § 2254

1

See generally Anderson-Bey v. Zavaras, 641 F.3d 445, 453-54 (10th Cir.

2011) (discussing extraordinarily narrow circumstances in which a petitioner can

challenge the validity of a current sentence by asserting that sentence was

enhanced by a previous, constitutionally defective conviction).

2

For this reason, it was unnecessary to determine whether Jackson’s § 2254

claims were of the type described as permissible in Anderson-Bey.

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. . . claim is filed in the district court without the required authorization from this

court, the district court may transfer the matter to this court if it determines it is

in the interest of justice to do so under § 1631, or it may dismiss the motion or

petition for lack of jurisdiction.”).

The granting of a COA is a jurisdictional prerequisite to Jackson’s appeal

from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Jackson must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district

court denies a petition on procedural grounds, a COA may issue only if “the

prisoner shows, at least, 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).

Having undertaken a review of Jackson’s appellate filings, the district

court’s order, and the entire record before this court pursuant to the framework

set out by the Supreme Court in Miller-El, we conclude Jackson is not entitled to

a COA. The district court’s procedural determination that it lacked jurisdiction to

review the merits of Jackson’s § 2254 petition, no matter how construed, is not

remotely, let alone reasonably, subject to debate. Likewise, given its obvious

failure to satisfy the requirements of § 2244(b)(2), the district court did not abuse

its discretion when it declined to transfer Jackson’s petition to this court. Cline,

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531 F.3d at 1252 (“Where there is no risk that a meritorious successive claim will

be lost absent a § 1631 transfer, a district court does not abuse its discretion if it

concludes it is not in the interest of justice to transfer the matter to this court for

authorization.”). Accordingly, this court DENIES Jackson’s request for a COA

and DISMISSES this appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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