Filed United States Court of Appeals Tenth Circuit
Filed United States Court of Appeals Tenth Circuit
May 9, 2012
Elisabeth A. Shumaker
Clerk of Court
No. 11-1542
(D.C. No. 1:11-CV-02155-LTB)
(D. Colo.)
Respondents-Appellees.
This order is not binding precedent except under the doctrines of law of the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.
was affirmed on direct appeal and his requests for state post-conviction relief were
denied. In 2009, Mr. Anderson filed his first 2254 habeas petition. The district
court denied the petition and Mr. Anderson did not appeal. In 2011, Mr. Anderson
filed a second 2254 petition and the district court dismissed it for lack of
jurisdiction.
Mr. Anderson now seeks a COA to appeal the dismissal of his second 2254
petition. In order to receive a COA, Mr. Anderson must show 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).
A prisoner may not file a second or successive 2254 petition unless he first
obtains an order from the circuit court authorizing the district court to consider the
petition. 28 U.S.C. 2244(b)(3)(A). In the absence of such authorization, a district
court lacks jurisdiction to address the merits of a second or successive 2254
petition. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). Because
Mr. Anderson failed to first obtain circuit-court authorization to file his second
2254 petition, the district court dismissed it for lack of jurisdiction. Reasonable
jurists could not debate that the district court was correct in its procedural ruling to
dismiss Mr. Andersons unauthorized second or successive 2254 petition for lack of
jurisdiction.
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