                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 26, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 BRIAN P. CALCARI,

               Petitioner - Appellant,                   No. 11-1019
          v.                                             (D. Colorado)
 ARI ZAVARAS, Executive Director,              (D.C. No. 1:10-CV-01096-ZLW)
 Colorado Department of Corrections;
 and THE ATTORNEY GENERAL OF
 THE STATE OF COLORADO,

               Respondents - Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order is not binding precedent except under the doctrines of law of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.
      Brian Calcari, a Colorado state prisoner proceeding pro se, filed an

amended 28 U.S.C. § 2254 petition for a writ of habeas corpus, which was

dismissed by the district court on the ground that it constituted an unauthorized

second or successive petition over which the court lacked jurisdiction. Mr.

Calcari seeks a Certificate of Appealability (“COA”) to enable him to appeal that

dismissal. For the following reasons, we deny Mr. Calcari a COA and dismiss

this matter.



                                 BACKGROUND

      Mr. Calcari was convicted in December 1996 in Larimer County, Colorado,

on charges of first-degree assault, accessory to attempted first-degree murder, and

accessory to first-degree assault. The Colorado Court of Appeals affirmed the

judgment on direct appeal on November 5, 1998, and, on April 19, 1999, the

Colorado Supreme Court denied his petition for a writ of certiorari.

      Subsequently, on November 23, 2001, Mr. Calcari filed a postconviction

motion in the sentencing court in Larimer County, pursuant to Colo. R. Crim. P.

35(c). The court denied the motion on December 12, 2001. On December 4,

2003, the Colorado Court of Appeals affirmed, and on June 1, 2004, the Colorado

Supreme Court once again denied his petition for certiorari.

      Some twelve years later, on March 17, 2008, the original sentencing court

corrected an error in the original mittimus concerning his sentence. More

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specifically, the court at the 1996 sentencing had ordered Mr. Calcari’s sentence

for accessory to first-degree assault and for first-degree assault to be served

consecutively, but the mittimus incorrectly listed them as being concurrent. In

2008, in response to a letter from Mr. Calcari himself, the court corrected the

mittimus, making clear that the two assault sentences were consecutive. In

reaction to this correction, on June 26, 2008, Mr. Calcari filed a postconviction

motion pursuant to Colo. Crim. P. 35(a), arguing that by correcting the mittimus

the court had resentenced him and his new sentence (1) was disproportionate; (2)

violated Crawford v. Washington, 124 S. Ct. 1354 (2004); (3) was entered

without jurisdiction because he was not notified of the alleged resentencing; and

(4) was illegal because it exceeds the maximum authorized by law. The court

denied the motion on July 8, 2008. The Colorado Court of Appeals affirmed the

denial on May 28, 2009, and the Colorado Supreme Court denied certiorari on

August 24, 2009.

      Mr. Calcari filed the instant action on May 12, 2010, alleging six claims

relating to his 1996 convictions and the subsequent correction to the mittimus.

His arguments were: (1) he did not knowingly and intelligently waive his right to

a trial by jury; (2) there was insufficient evidence to sustain his conviction; (3)

the trial court erred by failing to suppress his statements because he made them

following an unknowing and unintelligent waiver of his right to remain silent

under Miranda v, Arizona, 384 U.S. 436 (1966); (4) the trial court erred by failing

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to suppress his statements, because they were allegedly involuntary; (5) he was

resentenced when the mittimus was corrected in March 2008, but he was not

allowed to be present and did not have the opportunity for allocution; and (6) he

was resentenced to a sentence that was cruel and unusual.

      As the district court observed, this habeas petition was the third such

petition Mr. Calcari had filed in which he attacked his Larimer County 1996

convictions. His first habeas petition was dismissed because it contained both

exhausted and unexhausted claims. See Calcari v. Colorado, No. 00-cv-00350-

RPM (D. Colo., July 7, 2000), appeal dismissed, No. 00-1304, 2004 WL 1853952

(10th Cir. 2009), cert. denied, 533 U.S. 921 (2001). In his second habeas

application, Calcari v. Ortiz, No. 04-cv-01298-ZLW (D. Colo. Sept. 14, 2004),

appeal dismissed, No. 14-1422 (10th Cir. Feb. 9, 2005), cert. denied, No.

04-10562 (U.S. Oct. 3, 2005), the district court denied the habeas petition and

dismissed the action with prejudice as barred by the one-year limitation period in

28 U.S.C. § 2244(d). Our court denied a COA and dismissed the appeal on

February 9, 2005, and the Supreme Court denied certiorari review on October 3,

2005. The district court dismissed this petition for lack of jurisdiction, and Mr.

Calcari seeks a COA to challenge that dismissal.




                                         -4-
                                   DISCUSSION

      To obtain a COA, Mr. Calcari must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel,

529 U.S. 473, 483-84 (2000). A prisoner may make a “substantial showing of the

denial of a constitutional right” by “showing that reasonable jurists could debate

whether . . . the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.”

Id. at 484. Thus, when the district court has ruled on the merits of the petitioner’s

claims, he must show that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Id. Where the

district court ruled on procedural grounds, a COA may be granted when the

petitioner shows “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and . . . whether

the district court was correct in its procedural ruling.” Id. More particularly, in

this case, the question is whether reasonable jurists could debate the correctness

of the district court’s ruling that Mr. Calcari’s habeas petition is an unauthorized

second or successive one.

      The district court denied Mr. Calcari’s 2004 habeas petition as time-barred.

Such a dismissal is on the merits, and a subsequent petition challenging the same

conviction is second or successive. See Quezada v. Smith, 624 F.3d 514, 519-20

(2d Cir. 2010) (“We hold that dismissal of a § 2254 petition for failure to comply

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with the one-year statute of limitations constitutes an adjudication on the merits

that renders future petitions under § 2254 challenging the same conviction second

or successive under § 2244(b).”); see also Malone v. Workman, 282 Fed. App’x

686, 689 (10th Cir. 2008) (“Mr. Malone previously filed a § 2254 petition in

2003, challenging the same conviction at issue here, which was dismissed as

untimely. Such a dismissal is on the merits.”) (citation omitted). Mr. Calcari’s

current habeas petition was dismissed for lack of jurisdiction.

      Despite the fact that his current petition is his third habeas petition filed

challenging his 1996 conviction, Mr. Calcari argues it was not second or

successive, because he claims the correction of his sentence in 2008 was a

substantive resentencing, and the propriety of that has never been addressed.

Because Mr. Calcari had not obtained authorization from this court, the district

court considered whether to dismiss the petition or transfer the matter to this

court pursuant to 28 U.S.C. § 1631. See In re Cline, 531 F.3d 1249, 1252 (10th

Cir. 2008). Following the factors laid out in Cline, the district court reasoned:

             Mr. Calcari’s claims in the instant action are not based on
      either a new rule of constitutional law or newly discovered evidence
      as required pursuant to 28 U.S.C. § 2244(b)(2). Given that Mr.
      Calcari’s prior habeas application in No. 04-cv-01298-ZLW was
      dismissed as time-barred, it appears that his claims one through four
      challenging the same conviction and sentence in this action are also
      time-barred. It also was clear when the instant action was filed that
      this Court lacked jurisdiction over Mr. Calcari’s first four claims
      challenging the validity of his conviction and sentence in Larimer
      County District Court case number 96CR587.


                                          -6-
             In addition, it appears claims five and six also relate to Mr.
      Calcari’s original conviction because he was not resentenced, as he
      contends, but rather his mittimus was amended to correct a trial
      error.

Order of Dismissal at 5-6, R. Vol. 1 at 96-97.

      In his very conclusory and brief application for COA, Mr. Calcari has

presented nothing to suggest that the district court erred. No reasonable jurist

could question the propriety of the district court’s resolution of this case.



                                   CONCLUSION

      For the foregoing reasons, we DENY a COA and DISMISS this matter. We

also DENY Mr. Calcari’s request to proceed on appeal in forma pauperis.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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