                                                                                 FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                             June 23, 2009
                       UNITED STATES COURT OF APPEALS
                                                                         Elisabeth A. Shumaker
                                    TENTH CIRCUIT                            Clerk of Court



 ENRIQUE JARAMILLO MARTINEZ,

               Petitioner - Appellant,
        v.
                                                               No. 09-1053
 EUGENE ABBOTT, Warden, C.T.C.F;                    (D. Ct. No. 1:08-CV-02736-ZLW)
 JOHN SUTHERS, The Attorney General                             (D. Colo.)
 of the State of Colorado,

               Respondents - Appellees.


             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


       Petitioner-Appellant Enrique Jaramillo Martinez, a state prisoner proceeding pro

se, seeks a certificate of appealability (“COA”) to appeal from the district court’s denial

of his petition for habeas relief pursuant to 28 U.S.C. § 2254. We take jurisdiction under

28 U.S.C. § 1291, DENY Mr. Martinez’s request for a COA, and DISMISS this appeal.

       Mr. Martinez pleaded guilty in 1994 to two counts of sexual assault on a child.

His conviction and sentence were affirmed on direct appeal and the Colorado Supreme

Court denied certiorari review. In 2004, Mr. Martinez filed a § 2254 habeas petition in

federal district court and the court dismissed the petition as time-barred. See 28 U.S.C. §

2244(d). In December 2008, Mr. Martinez filed a second § 2254 habeas petition in

federal district court challenging his conviction and sentence. The district court
determined he was raising the same claims he had raised in his previous petition and

denied the petition as successive.1 Mr. Martinez appeals.

       A habeas petitioner may not appeal the denial of habeas relief under 28 U.S.C. §

2254 without first obtaining a COA. 28 U.S.C. § 2253(c)(1). Because the district court

denied Mr. Martinez’s petition as successive, a COA may issue only if Mr. Martinez

demonstrates 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).

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

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.”) (quotations omitted). The district court’s determination that Mr. Martinez’s

second habeas petition did not raise any new claims was itself proper grounds for

dismissal. See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive

habeas corpus application under section 2254 that was presented in a prior application

shall be dismissed.”). Even if, however, Mr. Martinez had raised new claims in his

second petition the petition would still have been appropriately dismissed on procedural

grounds. He has not argued that any of his claims are based on “a new rule of

constitutional law” or that the factual predicate for any of his claims “could not have been

discovered previously through the exercise of due diligence.” 28 U.S.C. §


       1
       The district court determined it was not in the interest of justice to transfer Mr.
Martinez’s petition to this circuit pursuant to 28 U.S.C. § 1631.

                                             -2-
2244(a)(2)(A)–(B)(ii). Accordingly we conclude that reasonable jurists could not debate

that the district court was correct in dismissing Mr. Martinez’s petition. We therefore

DENY a COA and DISMISS this appeal. Mr. Martinez’s motion to proceed in forma

pauperis is GRANTED.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




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