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

                            FOR THE TENTH CIRCUIT                            December 11, 2018
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 VICTOR LOPEZ,

       Petitioner - Appellant,

 v.                                                           No. 18-1337
                                                     (D.C. No. 1:17-CV-03121-LTB)
 STERLING CORRECTIONAL                                          (D. Colo.)
 FACILITY; CYNTHIA COFFMAN, the
 Attorney General of the State of Colorado,

       Respondents - Appellees.

 –––––––––––––––––––––––––––––––––––
 VICTOR LOPEZ,

       Petitioner - Appellant,

 v.                                                           No. 18-1338
                                                     (D.C. No. 1:17-CV-03120-LTB)
 STERLING CORRECTIONAL                                          (D. Colo.)
 FACILITY; CYNTHIA COFFMAN, the
 Attorney General of the State of Colorado,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before MATHESON, KELLY, and McHUGH, Circuit Judges.
                  _________________________________




       
         This order is not binding precedent except under the doctrines of law of the case,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 Case No. 18-1337, Victor Lopez, a Colorado prisoner proceeding pro se, seeks

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

28 U.S.C. § 2254 habeas application. In Case No. 18-1338, Lopez seeks a COA to

appeal the court’s denial of his motion for reconsideration.

       Lopez is currently serving a lengthy prison sentence for his conviction on rape

charges. Following unsuccessful efforts to challenge his conviction and sentence in the

state court, he filed a 28 U.S.C. § 2254 federal habeas petition, which was denied. We

denied a COA. See Lopez v. Trani, 628 F.3d 1228, 1232 (10th Cir. 2010).

       In 2017, Lopez filed a second § 2254 petition in which he argued that the state

court wrongly enhanced his sentence based on a prior conviction that had been dismissed.

The district court concluded that the petition was an unauthorized second or successive

§ 2254 petition over which it lacked jurisdiction. See In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam); see also 28 U.S.C. § 2244(b)(3)(A). The court also denied

Lopez’s motion to reconsider.

                                      Case No. 18-1337

       To appeal, Lopez must obtain a COA. See 28 U.S.C. § 2253(c)(1)(A). Where, as

here, a district court has dismissed the filing on procedural grounds—Lopez’s failure to

obtain authorization from this court to file a second or successive habeas petition—to

obtain a COA he must show both “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).

                                               2
       In Case No. 18-1337, Lopez fails to address the grounds for the district court’s

dismissal—that the court lacked jurisdiction to consider the application because it was

subject to the restrictions on second or successive § 2254 applications. Instead, Lopez

focuses on the merits of his claims, which we need not address because we can dispose of

this matter based on the procedural ruling. See Slack, 529 U.S. at 485. Because no

reasonable jurist could debate the court’s procedural decision, we deny a COA.1

                                     Case No. 18-1338

       As to Case No. 18-1338, the district court construed Lopez’s motion for

reconsideration as a true Rule 59(e) motion because it did not in substance or effect assert

or reassert a federal basis for relief from the petitioner’s underlying conviction.

See Gonzales v. Crosby, 545 U.S. 524, 532, 533, 538 (2005); see also United States v.

Pedraza, 466 F.3d 932, 933 (10th Cir. 2006). Still, Lopez must obtain a COA to appeal.

See Spitznas v. Boone, 464 F.3d 1213, 1225 (10th Cir. 2006). A COA may issue “if the

applicant has made a substantial showing of the denial of a constitutional right.”

§ 2253(c)(2).

       Grounds for relief under Rule 59(e) “include (1) an intervening change in the

controlling law, (2) new evidence previously unavailable, and (3) the need to correct

clear error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d



       1
         The district court dismissed Lopez’s § 2254 application on the alternative ground
that he was no longer in custody pursuant to the judgment he says was wrongly used to
enhance his sentence. We do not reach the not-in-custody issue because no reasonable
jurist could debate the court’s procedural decision that the application was second or
successive.
                                              3
1005, 1012 (10th Cir. 2000). Here, the district court determined that Lopez failed to meet

this test; rather, the motion repeated arguments the court previously considered and

rejected.

       “In cases like this one, where the decision appealed from involves a procedural

ruling of the district court, a COA may only issue if 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.” Spitznas, 464 F.3d at 1225

(internal quotation marks omitted). Because no reasonable jurist could debate the court’s

procedural decision, we deny a COA.

                                        Conclusion

       We deny COAs in Case Nos. 18-1337 and 18-1338 and dismiss these matters.

We deny Lopez’s motions to proceed in forma pauperis on appeal because he has failed

to demonstrate “the existence of 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

(10th Cir. 1991).


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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