                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 20, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 DOUGLAS LEE CRAWFORD,

                 Petitioner-Appellant,                   No. 09-1323
          v.                                             (D. of Colo.)
 KEVIN MILYARD, Warden, Sterling                (D.C. No. 08-CV-2642-ZLW)
 Correctional Facility, and THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Douglas Lee Crawford, a state prisoner proceeding pro se, 1 seeks a

certificate of appealability (COA) to appeal the district court’s dismissal of his 28

U.S.C. § 2254 habeas petition. The district court found that Crawford’s petition


      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Because Crawford is proceeding pro se, we view his filings liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
was an unauthorized successive petition and dismissed it for lack of jurisdiction.

This court has jurisdiction under 28 U.S.C. § 2253.

      We DENY Crawford’s request for a COA, DISMISS the appeal, and DENY

Crawford’s request to proceed in forma pauperis.

                                   I. Background

      In 1986, Crawford was convicted in Colorado state court on charges of

first-degree murder, menacing, and first-degree burglary. He was sentenced to

life imprisonment. Crawford filed his first § 2254 petition in May 2008. The

district court denied the petition, finding it time barred. D. Order, dated

August 14, 2008.

      In November 2008, Crawford filed this habeas petition. The district court

concluded that, despite the inclusion of language professing otherwise, the

petition attacks the same judgment of conviction that Crawford’s previous

petition did. The district court ruled that the November 2008 petition is an

unauthorized successive § 2254 application and, like Crawford’s first habeas

petition, is time barred. The district court held that it was not in the interest of

justice to transfer the instant petition to this court for authorization and, instead,

dismissed it for lack of jurisdiction.




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                                   II. Discussion

      A § 2254 petitioner must obtain a COA before appealing from a final order

in a habeas proceeding. See 28 U.S.C. § 2253(c)(1)(A). “[O]nly if the applicant

has made a substantial showing of the denial of a constitutional right” will the

court issue a COA. See 28 U.S.C. § 2253(c)(2). When, as here, the district court

denies the petitioner’s claim on procedural grounds, we will not issue a COA

unless the petitioner demonstrates: “[(1)] that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and [(2)] 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). Where possible, courts should resolve cases based on this test’s second

prong. Id. at 485.

      Before a state prisoner may file a second or successive § 2254 petition, the

prisoner must first “move in the appropriate court of appeals for an order

authorizing the district court to consider the application.” 28 U.S.C.

§ 2244(b)(3)(A). The court will only authorize a successive petition when the

petitioner relies on a new rule of constitutional law or newly discovered evidence.

See 28 U.S.C. § 2244(b)(2)(A)S(B), (b)(3)(C).

             When a second or successive § 2254 [] claim is filed in the district
             court without the required authorization from this court, 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.

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In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). A transfer is not in the interest

of justice when the claims raised in the successive petition clearly do not meet the

requirements set forth in 28 U.S.C. § 2244(b)(2). See In re Cline, 531 F.3d at

1252. In determining whether a transfer is in the interest of justice, a district

court should consider whether the claims would be time barred if filed in the

proper forum, whether the claims are meritorious, and whether the claims were

filed in good faith. See id. at 1251.

      It is clear from the record that the district court’s procedural ruling was

undebatably correct. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)

(“This court has repeatedly insisted that pro se parties follow the same rules of

procedure that govern other litigants.”). Crawford has not argued that any of his

claims are based on a new rule of constitutional law or newly discovered

evidence. See 28 U.S.C. § 2244(b)(2)(A)S(B). Moreover, as the district court

concluded—and as Crawford does not contest—all of the claims in Crawford’s

petition are time barred.

                                   III. Conclusion

      For the foregoing reasons, we DENY Crawford’s application for a COA

and DISMISS this appeal. We also DENY Crawford’s request to proceed in

forma pauperis on appeal. While Crawford has shown a financial inability to pay

the required fees, he has not demonstrated a reasoned, non-frivolous argument on




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the law and facts in support of the issues raised on appeal. See McIntosh v. U.S.

Parole Comm’n, 115 F.3d 809, 812S13 (10th Cir. 1997).

                                                    Entered for the Court,

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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