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

                           FOR THE TENTH CIRCUIT                     September 24, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
BOBBY M. ELLIS,

             Petitioner-Appellant,

v.                                                        No. 13-6187
                                                  (D.C. No. 5:13-CV-00471-W)
JANET DOWLING, Warden,                                   (W.D. Okla.)

             Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before GORSUCH, HOLMES, and PHILLIPS, Circuit Judges.


      Bobby M. Ellis, 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. Ellis was convicted of two counts each of rape in the first degree, lewd

molestation, and preparing child pornography. He was sentenced to a 75-year term

of imprisonment for each of the rape convictions, a 20-year term of imprisonment for

each of the lewd molestation convictions, and a 10-year term of imprisonment for

*
       This order is not binding precedent except under the doctrines of law of the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 child pornography conviction. In October 2007, the Oklahoma Court of

Criminal Appeals affirmed the convictions and sentences, except it reversed the

conviction on one count of preparing child pornography. Mr. Ellis sought

post-conviction relief in state court, but it was denied.

      In April 2010, Mr. Ellis 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, and we denied

Mr. Ellis’s request for a COA. See Ellis v. Parker, 426 F. App’x 683, 683-84

(10th Cir. 2011), cert. denied, 132 S. Ct. 1011 (2012).

      In May 2013, Mr. Ellis 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. Ellis now seeks a COA to appeal that

dismissal.

      To obtain a COA, Mr. Ellis 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


                                           -2-
successive § 2254 habeas petition. See In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam).

        Mr. Ellis’s new § 2254 habeas petition seeks to bring claims of ineffective

assistance of trial and appellate counsel. Mr. Ellis’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. Ellis’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. Ellis’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 deny Mr. Ellis’s motion for appointment of counsel as moot. We grant

Mr. Ellis’s motion for leave to proceed on appeal without prepayment of costs or

fees.

                                                 Entered for the Court



                                                 ELISABETH A. SHUMAKER, Clerk


                                           -3-
