# Jackson v. Cole

> District Court, W.D. Oklahoma · December 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10390607

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** December 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

JOSEPH M. JACKSON, )
)
Petitioner, )
)
v. ) Case No. CIV-23-463-G
)
STEVEN HARPE, Director, )
)
Respondent.1 )

ORDER
Petitioner Joseph M. Jackson, a state prisoner, filed this action seeking federal
habeas corpus relief pursuant to 28 U.S.C. § 2241. See Pet. (Doc. No. 1). In accordance
with 28 U.S.C. § 636(b)(1), the matter was referred to Magistrate Judge Amanda Maxfield
Green for preliminary review.
On July 5, 2023, Judge Green issued a Report and Recommendation (“R. & R.,”
Doc. No. 7), in which she recommended the Petition be dismissed upon preliminary review
for failure to plead a § 2241 habeas claim upon which relief can be granted. See R. 1(b),
4, R. Governing § 2254 Cases in U.S. Dist. Cts. Petitioner filed a timely written Objection
(Doc. No. 8).
Pursuant to governing authority, the Court reviews de novo the portions of the R. &
R. to which specific objections have been made. See United States v. 2121 E. 30th St., 73

1 The record reflects that Petitioner is currently housed at Lawton Correctional Facility, a
privately operated prison. Accordingly, Steven Harpe, the current Director of the
Oklahoma Department of Corrections, is hereby substituted as Respondent in this
proceeding. See R. 1(b), 2(a), R. Governing § 2254 Cases in U.S. Dist. Cts.
F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Having
conducted this de novo review, the Court finds as follows.
I. Background

As alleged in the Petition and summarized in the R. & R., Petitioner is currently
serving a life sentence with the possibility of parole for a 1983 first-degree murder
conviction in the District Court of Oklahoma County, Oklahoma.
In October of 2022, Petitioner sought parole from the Oklahoma Pardon and Parole
Board (“PPB”) by applying through the Aging Prisoners’ Parole system established in title

57, section 332.21 of the Oklahoma Statutes. “That statute generally empowers the [PPB]
to grant parole to individuals in state custody who are at least 60 years old, but not if they
are in prison for certain enumerated crimes.” Abdulhaseeb v. Rankins, No. 22-6152, 2023
WL 2147328, at *1 (10th Cir. Feb. 22, 2023). As relevant here, the Aging Prisoners’
Parole system prescribes that parole may not be granted to an applicant who is “imprisoned

for a crime enumerated in Section 13.1 of Title 21 of the Oklahoma Statutes or Section 571
of Title 57 of the Oklahoma Statutes.” Okla. Stat. tit. 57, § 332.21(A)(4).
On January 27, 2023, the PPB denied Petitioner’s application because: (1) Petitioner
“did not have the Record Officer at the DOC facility complete the Eligibility Section as
per the directions”; and (2) Petitioner is imprisoned for a crime enumerated in one or both

of the prohibited statutes. See Pet. Ex. 4 (Doc. No. 1-4) at 87-88 (“Murder 1 is ineligible
for aging prisoner parole.”); see also Okla. Stat. tit. 21, § 13.1 (prescribing that persons
convicted of “[f]irst degree murder” “shall be required to serve not less than eighty-five
percent (85%) of any sentence of imprisonment . . . prior to becoming eligible for
consideration for parole”); id. tit. 57, § 571(2)(i) (identifying first-degree murder as a
“[v]iolent crime”).
Petitioner now seeks federal habeas relief on four grounds.

Habeas review under § 2241 is available “if an individual is in custody in
violation of the Constitution or laws or treaties of the United States. The
fundamental purpose of a § 2241 habeas proceeding is to allow a person in
custody to attack the legality of that custody, and the traditional function of
the writ is to secure release from custody.” Palma-Salazar v. Davis, 677
F.3d 1031, 1035 (10th Cir. 2012) (quotations and citations omitted).
Abdulhaseeb v. Rankins, No. CIV-21-1016-HE, 2022 WL 3567183, at *1 (W.D. Okla.
Aug. 18, 2022).
Liberally construed, Petitioner claims that the Aging Prisoners’ Parole system
and/or his denial of parole under that system violate: (1) the Eighth Amendment, as well
as the Oklahoma Constitution; (2) due process; (3) the Ex Post Facto Clause; and (4) equal
protection. See Pet. at 6-7, 9-12 (requesting that the Court order his “immediate release
from unlawful confinement”).
II. The Report and Recommendation
In the R. & R., Judge Green summarized Petitioner’s factual allegations and legal
claims, as well as the applicable standards of review. Judge Green considered each of
Petitioner’s challenges to the Aging Prisoners’ Parole system and concluded that none of
them provided a basis for relief under 28 U.S.C. § 2241. See R. & R. at 5-10.
The Court herein addresses Petitioner’s objections that are “sufficiently specific” to
preserve the relevant disputed issues for de novo review. 2121 E. 30th St., 73 F.3d at
1059; see also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)
(“[T]heories raised for the first time in objections to the magistrate judge’s report are
deemed waived.”).
Petitioner first argues that the magistrate judge erred in denying Petitioner’s

application for leave to proceed in forma pauperis, despite Petitioner having paid the
requisite filing fee, because Petitioner should have been appointed representation and
permitted to take discovery in this matter. See Pet’r’s Obj. at 3. Again, the Court discerns
no error here. Even if Petitioner had been granted leave to proceed in forma pauperis,
appointment of counsel and leave for discovery are separate matters and were not

warranted at this preliminary stage. See R. 4, 6, 7, R. Governing § 2254 Proceedings in
U.S. Dist. Cts.; Holloway v. Hatch, 250 F. App’x 899, 901 (10th Cir. 2007).
Next, Petitioner objects that the magistrate judge improperly failed to consider his
argument that his denial of parole under the Aging Prisoners’ Parole system violated the
Oklahoma Constitution. See Pet’r’s Obj. at 5-6, 8-9, 16, 23; see also Pet. at 6, 9.

“[F]ederal habeas corpus relief does not lie for errors of state law,” however. Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (internal quotation marks omitted). The Court overrules
this objection.
Petitioner also objects that the R. & R. only addresses one of his attempts to obtain
parole under the Aging Prisoners’ Parole system, even though the Petition alleges there

was a subsequent denial in “April, 2023.” Pet. at 2; see Pet’r’s Obj. at 4. According to
Petitioner, on his April 2023 application he supplied the eligibility certification that had
been missing from his January 2023 application. See Pet. Ex. 4, at 89. Petitioner alleges
that he did not receive a response from the PPB on the April 2023 application; Petitioner
therefore “deem[s] the subsequent application denied” with “no reason” provided. Pet’r’s
Obj. at 6-7 & n.4. Petitioner challenges the propriety of this deemed denial given his
completion of the eligibility certification. See id. at 8 (arguing that “[i]f not having the

Records Officer at the Department of Corrections facility complete the Eligibility Section
. . . is deemed justification for denial of parole,” then “surely” having completed that
section “is justification for a grant of such parole”). Petitioner here ignores the fact that,
regardless of any eligibility certification, the April 2023 application would be subject to
denial under the express terms of the relevant statute because of his imprisonment on a

sentence for first-degree murder. See Okla. Stat. tit. 57, § 332.21(A)(4). The Court does
not find any error of consequence in the R. & R.’s consideration of the subsequent parole
application.
The remainder of Petitioner’s Objection largely repeats Petitioner’s criticisms—
already addressed and rejected in the R. & R.—of the parole process set forth in section

332.21 and of the disposition of his applications for relief under that process. Petitioner’s
disagreement with minor factual aspects of Judge Green’s analysis does not evince any
error in the reasoning or the recommendation set forth in the R. & R. The Court concurs
with the magistrate judge that Petitioner “is not entitled to relief” under 28 U.S.C. § 2241.
R. 4, R. Governing § 2254 Cases in U.S. Dist. Cts.; see also Abdulhaseeb, 2022 WL

3567183, at *2-4.
CONCLUSION
For the foregoing reasons, the Report and Recommendation issued July 5, 2023
(Doc. No. 7) is ADOPTED in its entirety. The Petition for Writ of Habeas Corpus Under
28 U.S.C. § 2241 (Doc. No. 1) is DISMISSED pursuant to Rules 1(b) and 4 of the Rules
Governing Section 2254 Cases in the United States District Courts. A separate judgment
shall be entered.

Rules 1(b) and 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts requires the Court to issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner. A COA may issue only upon “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Further, “[w]hen the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when 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,
529 U.S. at 484.
Upon review, the Court finds that the requisite standard is not met in this case. A

certificate of appealability is DENIED.
IT IS SO ORDERED this 29th day of December, 2023.

CHARLES B. GOODWIN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390607. Public record. Not legal advice.