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

                             FOR THE TENTH CIRCUIT                               June 14, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
ALEXANDER PALOMAREZ,

      Petitioner - Appellant,

v.                                                            No. 18-2054
                                                  (D.C. No. 1:18-CV-00298-RB-SMV)
DARIN YOUNG, Warden; MARTY                                     (D. N.M.)
JACKLEY, Attorney General,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before BRISCOE, LUCERO, and EID, Circuit Judges.
                   _________________________________

       On March 20, 2018, Alexander Palomarez, a state prisoner proceeding pro se, filed

a 28 U.S.C. § 2254 application for a writ of habeas corpus in the district court, in which

he argued that he had “exculpatory evidence to prove actual innocence.” R. at 5. The

court dismissed the application without prejudice for lack of jurisdiction because

Mr. Palomarez had not obtained authorization from this court to file a second or

successive § 2254 application. Because no reasonable jurist would find it debatable that

the court was correct in denying relief under Mr. Palomarez’s application, we deny a




       
         This order is not binding precedent except under the doctrines of law of the case,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.
certificate of appealability (COA) and dismiss the appeal. See 28 U.S.C. § 2253(c)

(requiring COA to appeal the dismissal of a claim under § 2254).

       In 2013, Mr. Palomarez pleaded guilty to first-degree rape. His conviction was

affirmed on direct appeal. In 2015, he filed his first § 2254 habeas application in the

District of South Dakota. The District of South Dakota dismissed the application. The

Eighth Circuit denied his request for a COA and dismissed his appeal. Palomarez v.

Young, No. 16-1655 (8th Cir. Sept. 9, 2016) (unpublished judgment). Mr. Palomarez

thereafter filed additional motions for authorization with the Eighth Circuit, additional

§ 2254 applications in (or transferred to) the District of South Dakota, and this

application in the District of New Mexico.

       The New Mexico district court noted that this was Mr. Palomarez’s fourth § 2254

application and that he had not obtained permission from this court to file a second or

successive application. It declined to transfer the matter to this court for authorization,

and instead dismissed it without prejudice for lack of jurisdiction. The district court also

denied a COA.

       Where the district court denies a habeas application on procedural grounds, a COA

should not issue unless “the prisoner shows, at least, 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). We construe

Mr. Palomarez’s pro se filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam). Even under this standard, he has failed to show his entitlement to a COA.

                                              2
       To begin with, it appears the District of New Mexico lacked jurisdiction to

entertain Mr. Palomarez’s habeas application. District courts can grant habeas corpus

relief only “within their respective jurisdictions,” 28 U.S.C. § 2241(a), which requires

that the district court have jurisdiction over the plaintiff’s custodian, see Rumsfeld v.

Padilla, 542 U.S. 426, 442 (2004). Mr. Palomarez is incarcerated in South Dakota, not

in New Mexico. To be sure, the custodial requirement does not affect the district court’s

subject-matter jurisdiction. See id. at 434 n.7, 451 (Kennedy, J., concurring). The district

court did not err in reaching (and dismissing on) a different jurisdictional issue. But we

caution Mr. Palomarez that so long as his custodian is not located within the territorial

jurisdiction of the District of New Mexico, that court does not have jurisdiction to grant

him habeas corpus relief.

       In any event, Mr. Palomarez has not made a case that the district court was wrong

in determining that he was required to obtain this court’s permission to file a second or

successive § 2254 habeas application.1 No jurist of reason could debate whether the

district court properly dismissed Mr. Palomarez’s filing as an unauthorized second or

successive § 2254 application. “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 . . . or it may dismiss the motion or petition for lack of

jurisdiction.” In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam).



       1
         This court is the “appropriate court of appeals,” 28 U.S.C. §2244(b)(3)(A), in
which to seek authorization to file a second or successive § 2254 habeas application in
the District of New Mexico.
                                               3
      We deny a COA and dismiss the appeal. We grant Mr. Palomarez’s motion to

proceed in forma pauperis.


                                        Entered for the Court



                                        ELISABETH A. SHUMAKER, Clerk




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