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

                            FOR THE TENTH CIRCUIT                         April 17, 2014

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
TOMMY MAY,

             Petitioner-Appellant,

v.                                                         No. 13-3318
                                                  (D.C. No. 5:13-CV-03162-SAC)
STATE OF KANSAS; ATTORNEY                                    (D. Kan.)
GENERAL OF KANSAS,

             Respondents-Appellees.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, GORSUCH, and PHILLIPS, Circuit Judges.



      Tommy May, a Kansas prisoner proceeding pro se, seeks to appeal two orders

of the district court: an order dismissing his 28 U.S.C. § 2254 habeas petition as an

unauthorized second or successive application, and an order denying his motion to

alter its findings of fact pursuant to Fed. R. Civ. P. 52(b). We deny a certificate of

appealability (COA) and dismiss this appeal.




*
       This order is not binding precedent except under the doctrines of law of the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 1984, a Kansas jury found Mr. May guilty of two counts of aggravated

robbery. After pursuing a number of post-conviction motions in state court, he filed

a prior § 2254 petition in 2010, which the district court dismissed as untimely.

      In 2009, Mr. May filed a motion to correct an illegal sentence in state district

court, which was denied. He then pursued an appeal of the denial to the Kansas

Court of Appeals. The Kansas Court of Appeals affirmed the denial on July 22,

2011, but in its order it remanded for correction, nunc pro tunc, of a clerical error in

the journal entry of judgment.

      The Kansas statutes direct that “[w]henever the record is silent as to the

manner in which two or more sentences imposed at the same time shall be served,

they shall be served concurrently[.]” Kan. Stat. Ann. § 21-6606 (formerly found at

Kan. Stat. Ann. § 21-4608(a)). The sentencing judge did not specify whether

Mr. May’s sentences on the two counts were to run concurrently or consecutively;

hence, the sentences were to be served concurrently. Due to a clerical error,

however, the journal entry of judgment in Mr. May’s case stated that his sentences

would run consecutively. On remand, the state court entered an amended journal

entry of judgment correcting this clerical error.

      After unsuccessfully pursuing a further state proceeding for post-conviction

relief, Mr. May filed this 28 U.S.C. § 2254 petition. The district court dismissed his

petition for two reasons: it was second-or-successive, and it was time-barred.

Mr. May then filed his Fed. R. Civ. P. 52(b) motion. The district court concluded


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that the entry of the amended journal entry of judgment did not make Mr. May’s

convictions non-final or reset the date of the state court judgment for either

timeliness or second-or-successive purposes. Accordingly, it denied the motion.

      When the district court denies a habeas petition on procedural grounds, the

petitioner must demonstrate both “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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Mr. May fails to satisfy these requirements.

      Mr. May argues that his § 2254 petition should not have been dismissed as

successive and time-barred and that his Rule 52(b) motion should have been granted

because “where there is a new judgment intervening between two habeas petitions, an

application challenging the resulting new judgment is not second or successive at

all.” Aplt. Combined Brief & Application for COA, at 25 (internal quotation marks

and ellipsis omitted) (quoting Magwood v. Patterson, 130 S. Ct. 2788, 2802 (2010)).

But he points to no authority holding that the state court’s correction of a clerical

error represents a “new judgment” from which an otherwise untimely and

second-or-successive habeas petition may be filed. In fact, authorities interpreting

Magwood have held to the contrary. United States v. Cano, ___ F. App’x ___,

2014 WL 929053, at *4 n.6 (11th Cir. Mar. 11, 2014) (“The fact that the district court

entered an amended judgment to correct clerical errors does not result in a new

judgment that is exempt from the rules on second or successive petitions pursuant to


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28 U.S.C. § 2255.”); United States v. Ledesma-Cuesta, 476 F. App’x 412, 412 n.2

(3d Cir. 2012) (per curiam) (“[Appellant] points to no precedential opinion that

suggests that the correction of a clerical error serves to either restart the limitations

period or negate the existence of a prior attempt at collateral relief.”); cf. In re

Martin, 398 F. App’x 326, 327 (10th Cir. 2010) (where amended judgment entered

to correct clerical error in nature of charge for which defendant had been convicted,

“the amended judgment merely corrected a clerical error—one which did not rise

to the level of constitutional error, as [appellant] was fully aware of his offense

of conviction”).

       Mr. May fails to show the district court erred in concluding that his § 2254

petition was an unauthorized second-or-successive filing. We therefore deny him a

COA and dismiss this appeal.

                                                 Entered for the Court



                                                 ELISABETH A. SHUMAKER, Clerk




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