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

                           FOR THE TENTH CIRCUIT                         April 29, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
PETER E. GOMEZ,

             Petitioner-Appellant,

v.                                                        No. 13-1004
                                                 (D.C. No. 1:12-CV-03008-LTB)
JOHN DAVIS, B.V.M.C.; ROGER                                 (D. Colo.)
WERHOLTZ, Interim Executive Director
DOC*; JOHN SUTHERS, Attorney
General of the State of Colorado,

             Respondents-Appellees.


         ORDER DENYING CERTIFICATE OF APPEALABILITY
       AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS**


Before HARTZ, GORSUCH, and MATHESON, Circuit Judges.


      Peter E. Gomez, proceeding pro se, seeks a certificate of appealability (COA)

to appeal the district court’s dismissal of his unauthorized second or successive

28 U.S.C. § 2254 application for a writ of habeas corpus. We deny a COA an

dismiss the matter.


*
      Pursuant to Fed. R. App. P. 43(c)(2), Roger Werholtz, Interim Executive
Director DOC, is substituted for Tom Clements, Executive Director DOC, as a
Respondent-Appellee in this action.
**
       This order is not binding precedent except under the doctrines of law of the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 2002, Mr. Gomez pleaded guilty in Colorado state court to (1) possession

with intent to distribute a controlled substance and (2) possession of a controlled

substance. He was sentenced to twenty-four and six years’ imprisonment,

respectively, with the sentences to run consecutively.

       In 2009, Mr. Gomez filed in state court a motion for expungement of court

costs due to his indigency. On February 20, 2009, the state trial court entered a

minute order vacating court costs related to Mr. Gomez’s controlled substance

convictions. Aplt.’s Combined Opening Br. & Appl. for COA, Ex. A at 1-2.

       In 2011, Mr. Gomez filed his first § 2254 application, asserting that the state

trial court erred in imposing consecutive sentences for his controlled substance

convictions. The district court denied the application as time-barred.

       In 2012, Mr. Gomez filed a second § 2254 application. It challenged the same

Colorado convictions and sentences as his first § 2254 application. This time he took

issue not only with his consecutive sentences, but also with his plea agreement. The

district court decided this filing was an unauthorized second or successive § 2254

application. See 28 U.S.C. § 2244(b). Declining to transfer it to this court, the

district court dismissed it for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1252

(10th Cir. 2008) (per curiam) (stating that, when a district court is presented with an

unauthorized second or successive § 2254 claim, it “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 motion . . . for lack of jurisdiction”).


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      Mr. Gomez now seeks a COA to appeal from the district court’s dismissal.

When, as here, a district court dismisses a habeas application on procedural grounds,

a petitioner is entitled to a COA only if he shows both that reasonable jurists would

find it debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct. Slack v. McDaniel,

529 U.S. 473, 484 (2000).

      We construe Mr. Gomez’s pro se filings liberally. Sigala v. Bravo, 656 F.3d

1125, 1126 (10th Cir. 2011). As best we can discern, he argues that the state trial

court’s February 20, 2009, minute order waiving court costs qualifies as a new

judgment under the Supreme Court’s holding in Magwood v. Patterson, 130 S. Ct.

2788 (2010), so the § 2254 application he filed in 2012 was not a second or

successive application. Mr. Gomez’s argument is misplaced.

      In Magwood, the Supreme Court held that when “there is a ‘new judgment

intervening between the two habeas [applications],’ an application challenging the

resulting new judgment is not ‘second or successive’ at all.” 130 S. Ct. at 2802

(citation omitted). In reaching this determination, the Court addressed the meaning

of “second or successive” in § 2244(b), concluding that the use of the term

“judgment” in § 2254(b) was “significant” and “that the phrase ‘second or

successive’ must be interpreted with respect to the judgment challenged.” Id.

at 2797.




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      In this case, the state trial court’s 2009 minute order vacating court costs is not

a new judgment entered between Mr. Gomez’s 2011 and 2012 applications for § 2254

relief. Despite Mr. Gomez’s statements to the contrary, the § 2254 application he

filed in 2012 challenges the same judgment that he challenged in his 2011 application

for § 2254 relief: the judgment entered after he pleaded guilty in 2002 to two

controlled substance violations.

      Mr. Gomez also argues that the district court should not have found the § 2254

application he filed in 2012 to be second or successive because the district court did

not adjudicate the merits of his first application, but instead dismissed it as

time-barred. Mr. Gomez is mistaken. “The dismissal of [his] first habeas petition as

time-barred was a decision on the merits, and any later habeas petition challenging

the same conviction is a second or successive subject to the AEDPA requirements.”

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

      Because reasonable jurists could not debate that the district court was correct

in its procedural ruling—to treat Mr. Gomez’s § 2254 claims as an unauthorized

second or successive § 2254 application and to dismiss it for lack of jurisdiction—we

deny a COA and dismiss this matter. We also deny Mr. Gomez’s motion for leave to

proceed on appeal without prepayment of costs or fees because he has failed to

advance “a reasoned, nonfrivolous argument on the law and facts in support of the

issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505




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(10th Cir. 1991). Mr. Gomez is therefore directed to pay the full amount of the filing

fee forthwith.

                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




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