                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      September 5, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
FAYVUN MANNING,

             Petitioner-Appellant,

v.                                                        No. 13-3168
                                                 (D.C. No. 5:13-CV-03071-SAC)
STATE OF KANSAS,                                            (D. Kan.)

             Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, HARTZ and MATHESON, Circuit Judges.


      Fayvun Manning, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s dismissal of his second 28 U.S.C.

§ 2254 habeas petition for lack of jurisdiction. We deny a COA and dismiss the

matter.

      Mr. Manning was convicted of aggravated robbery and first-degree felony

murder. The Kansas Supreme Court affirmed his conviction on direct appeal in

2001. Mr. Manning sought post-conviction relief in state court, but it was denied.



*
       This order is not binding precedent except under the doctrines of law of the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.
      In March 2006, Mr. Manning filed his first § 2254 habeas petition challenging

his convictions. The district court dismissed the petition with prejudice as

time-barred because it was filed outside of the one-year statute of limitations.

Mr. Manning did not seek to appeal that decision.

      In March 2013, Mr. Manning filed a second § 2254 habeas petition. The

district court determined that this petition was an unauthorized second or successive

petition and dismissed it for lack of jurisdiction. Mr. Manning now seeks a COA to

appeal that dismissal.

      To obtain a COA, Mr. Manning 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 habeas petition unless

he first obtains an order from the circuit court authorizing the district court to

consider the petition. See 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 habeas petition. See In re Cline, 531 F.3d 1249, 1251 (10th Cir.

2008) (per curiam).

      Mr. Manning’s new § 2254 habeas petition asserts that (1) the charging

document was jurisdictionally defective in that it lacked essential elements of the

offense; (2) the jury instructions differed from the charge in the complaint; (3) trial


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counsel was ineffective; and (4) the State erred in summarily dismissing his

post-conviction motion and not excusing his failure to previously raise his claims.

      Mr. Manning’s first § 2254 habeas petition brought claims attacking the same

conviction that he now seeks to challenge in his second § 2254 habeas petition. Even

though his first § 2254 habeas petition was dismissed as time-barred, that

determination still counts as “a decision on the merits, and any later habeas petition

challenging the same conviction is second or successive and is subject to the AEDPA

requirements.” In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam). The

district court therefore properly characterized Mr. Manning’s new petition as a

second or successive § 2254 habeas petition.

      Reasonable jurists could not debate that the district court was correct to treat

Mr. Manning’s new petition as an unauthorized second or successive § 2254 habeas

petition and to dismiss it for lack of jurisdiction. Accordingly, we deny a COA and

dismiss this matter. We grant Mr. Manning’s motion for leave to proceed on appeal

without prepayment of costs or fees.

                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




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