                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 7, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    WAYNE BRUNSILIUS,

                Petitioner-Appellant,

    v.                                                   No. 10-1395
                                               (D.C. No. 1:10-CV-00739-ZLW)
    BRIGHAM SLOAN, Warden; JOHN                           (D. Colo.)
    SUTHERS, the Attorney General of
    the State of Colorado,

                Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
McKAY, Circuit Judge.



         Wayne Brunsilius, a Colorado prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s dismissal of his

complaint, which it construed as an unauthorized successive 28 U.S.C. § 2254




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
habeas petition, for lack of jurisdiction. Exercising jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), we deny a COA and dismiss the appeal.

      Mr. Brunsilius pleaded guilty to six counts of sexual assault in 1991, and

was sentenced to six consecutive four-year terms. His conviction was affirmed on

direct appeal in 1992. He filed several state post-conviction motions, all denied.

He filed his first § 2254 federal petition in 2008, which was dismissed as

untimely, and this court denied him a COA. Brunsilius v. Brill, 303 F. App’x

610, 611-12 (10th Cir. 2008).

      In March 2010, Mr. Brunsilius filed a document in district court titled as a

“Complaint and Petition for Removal of Case Pursuant to Title 28 U.S.C.

§ 1441(a), (b), (c), (e1) to Federal Jurisdiction.” In it, he challenged his state

conviction and sentence and requested the district court to remove his state

post-conviction proceedings to federal court. The district court entered an order

stating that Mr. Brunsilius’s claims were properly asserted pursuant to a § 2254

petition, and because he had previously filed a § 2254 challenging his state

conviction, he was required to obtain this court’s authorization before filing a

second § 2254 petition. See 28 U.S.C. § 2244(b)(3)(A). The court ordered him to

cure this deficiency within thirty days if he wished to pursue his claims. In

response, Mr. Brunsilius modified his filing in district court to attach his

complaint to a § 2254 application form, but he did not seek or obtain

authorization from this court to file a second or successive § 2254 petition.

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“A district court does not have jurisdiction to address the merits of a second or

successive . . . § 2254 claim until this court has granted the required

authorization.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

The district court gave Mr. Brunsilius several opportunities to cure this

authorization deficiency, which he did not do. The district court then ruled that

Mr. Brunsilius’s complaint constituted an unauthorized second or successive

§ 2254 petition and dismissed it for lack of jurisdiction.

      Mr. Brunsilius has now appealed that dismissal. To pursue an appeal, he

must obtain a COA. See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir.

2008) (concluding that a COA was required to appeal from the dismissal of an

unauthorized § 2255 motion). Thus, he “must show that ‘jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.’”

Id. (quoting Slack v. McDaniel, 529 U.S. 473, 478 (2000)). Mr. Brunsilius

contends on appeal that he never intended to file a § 2254 petition; his intent was

to file a § 1441 removal complaint seeking to transfer his state post-conviction

proceedings to the federal court. He argues that prior authorization is not

required to file a § 1441 complaint and the district court erred in construing his

complaint as a § 2254 petition. He is mistaken. The bar against successive

§ 2254 petitions may not be avoided “by simply styling a petition under a

different name.” United States v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002).

“It is the relief sought, not [the] pleading’s title, that determines whether the

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pleading is a [§ 2254 petition].” United States v. Nelson, 465 F.3d 1145, 1149

(10th Cir. 2006). A post-judgment motion “is a second or successive petition if it

in substance or effect asserts or reasserts a federal basis for relief from the

petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215

(10th Cir. 2006).

      Mr. Brunsilius’s complaint clearly challenged the validity and

constitutionality of his state court conviction, asserting in part that the state

lacked jurisdiction over his criminal case; his criminal judgment is void; his

sentence was unconstitutional; his indictment was unconstitutional; he was

deprived of a constitutionally fair and impartial trial; his sentence was not based

on accurate information; and Colorado did not follow its own laws and

constitution. We conclude that no reasonable jurist would debate the district

court’s ruling that Mr. Brunsilius’s complaint asserted unauthorized second or

successive § 2254 claims or its dismissal thereof for lack of jurisdiction. Thus,

Mr. Brunsilius fails to satisfy the requirements for issuance of a COA.

      We GRANT Mr. Brunsilius’s request to proceed without prepayment of

costs or fees on appeal. We DENY the application for a COA and DISMISS the

appeal.

                                                       Entered for the Court


                                                       Michael R. Murphy
                                                       Circuit Judge

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