Jackson v. Mullin , 445 F. App'x 124 ( 2011 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    October 26, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    ROBERTO ANTONIO JACKSON,
    Petitioner!Appellant.
    v.                                             No. 11-6098 & 11-6133
    (D.C. No. 5:11-CV-00009-D)
    MIKE MULLIN,                                        (W.D. Okla.)
    Respondent!Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *
    Before BRISCOE, Chief Judge, KELLY, and MATHESON, Circuit Judges.
    Roberto Antonio Jackson, a state prisoner proceeding pro se, seeks a
    certificate of appealability (COA) to appeal the district court’s dismissal of his
    unauthorized second or successive 
    28 U.S.C. § 2254
     petition for lack of
    jurisdiction. We deny COA and dismiss the matter.
    In 2003, Mr. Jackson was convicted in Oklahoma state court on one count
    of possession with intent to distribute marijuana and one count of possession with
    intent to distribute cocaine. He was sentenced to thirty years’ imprisonment on
    *
    This order is not binding precedent except under the doctrines of law of the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.
    each count, the terms to be served concurrently. On direct appeal the Oklahoma
    Court of Criminal Appeals (OCCA) affirmed his convictions and sentences.
    Mr. Jackson pursued state post-conviction relief, but the OCCA affirmed the trial
    court’s denial of relief.
    In 2007, Mr. Jackson filed his first § 2254 petition for habeas relief
    challenging his state court convictions and sentences. The district court denied
    relief and this court denied Mr. Jackson’s request for a COA. See Jackson v. Ray,
    292 F. App’x 737, 739 (10th Cir. 2008).
    In January 2011, Mr. Jackson filed a second § 2254 petition challenging his
    state court convictions. 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 motion. 
    28 U.S.C. § 2244
    (b)(3)(A). “A district
    court does not have jurisdiction to address the merits of a second or successive
    . . . § 2254 claim until [the circuit] court has granted the required authorization.”
    In re Cline, 
    531 F.3d 1249
    , 1251 (10th Cir. 2008) (per curiam). Because
    Mr. Jackson failed to first obtain circuit-court authorization to file his second
    § 2254 petition, the district court dismissed it for lack of jurisdiction.
    Mr. Jackson now seeks a COA to appeal the dismissal of his second § 2254
    petition. He complains that the district court should have transferred his petition
    to this court instead of dismissing it for lack of jurisdiction. In order to receive a
    COA, Mr. Jackson must show “that jurists of reason would find it debatable
    -2-
    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).
    When presented with an unauthorized second or successive claim, “the
    district court may transfer the matter to this court if it determines it is in the
    interest of justice to do so under [28 U.S.C. ] § 1631, or it may dismiss the . . .
    petition for lack of jurisdiction.” Cline, 
    531 F.3d at 1252
    . Here, the district court
    determined it would not be in the interest of justice to transfer Mr. Jackson’s
    successive § 2254 petition. Because Mr. Jackson filed an unauthorized second or
    successive § 2254 petition and his new claims are not likely to meet the
    authorization requirements in § 2244(b)(2) for filing a successive petition,
    reasonable jurists could not debate that the district court was correct in its
    procedural ruling to dismiss the successive § 2254 petition for lack of jurisdiction
    instead of transferring it to this court. Accordingly, we DENY COA in case no.
    11-6098 and DISMISS the matter.
    We also DENY Mr. Jackson’s motion to proceed on appeal in forma
    pauperis (IFP) because he has failed to advance “a reasoned, nonfrivolous
    argument on the law and facts in support of the issues raised on appeal.”
    DeBardeleben v. Quinlan, 
    937 F.2d 502
    , 505 (10th Cir. 1991). Mr. Jackson
    complains that the district court should have transferred his unauthorized second
    or successive petition instead of dismissing it, but he acknowledges in his COA
    -3-
    application that “the district court can either dismiss or transfer [the] petition to
    the federal court of appeals.” COA app. at 5. He has presented no authority to
    support a conclusion that the district court abused its discretion in dismissing his
    unauthorized successive § 2254 petition. Moreover, Mr. Jackson failed to show
    any prejudice by the district court’s decision to choose dismissal over transfer
    because he remains free to seek authorization from this court. His COA
    application is therefore frivolous and does not entitle him to proceed IFP on
    appeal.
    Mr. Jackson also filed a request for a COA from the district court’s denial
    of his motion to proceed IFP on appeal. This is not the proper procedure to seek
    reconsideration of the district court’s IFP decision. The proper procedure is to
    file a motion for IFP in this court, which he did. As noted above, we have
    independently reviewed the IFP motion and denied it. Accordingly, we DISMISS
    the appeal in case no. 11-6133.
    Entered for the Court,
    ELISABETH A. SHUMAKER, Clerk
    -4-
    

Document Info

Docket Number: 11-6098, 11-6133

Citation Numbers: 445 F. App'x 124

Judges: Briscoe, Kelly, Matheson

Filed Date: 10/26/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023