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

                            FOR THE TENTH CIRCUIT                          July 25, 2013

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
WALTER ALMON PAYTON,

             Petitioner-Appellant,

v.                                                         No. 13-3115
                                                  (D.C. No. 5:13-CV-03066-SAC)
ROGER WERHOLTZ; FNU LNU,                                     (D. Kan.)
Secretary of Corrections; STATE OF
KANSAS; RAY ROBERTS, Secretary of
Corrections; DEREK SCHMIDT, Kansas
Attorney General,

             Respondents-Appellees.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, HOLMES, and MATHESON, Circuit Judges.


      Walter Almon Payton, a Kansas state prisoner proceeding pro se, seeks a

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

28 U.S.C. § 2254 petition as an unauthorized second or successive habeas petition.

We deny a COA and dismiss this matter.

      In 1998, Mr. Payton was convicted in a Kansas state court of three counts of

rape and sentenced to 712 months’ imprisonment. The district court denied his first

*
       This order is not binding precedent except under the doctrines of law of the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.
§ 2254 petition as untimely, and this court denied a COA. Payton v. McKune,

140 F. App’x 804 (10th Cir. 2005). He filed another § 2254 petition, which the

district court dismissed for lack of jurisdiction as an unauthorized second or

successive petition. And this court has twice denied him authorization to file second

or successive § 2254 petitions, see In re Payton, No. 09-3323 (10th Cir. Nov. 16,

2009) (unpublished order denying first motion for authorization); In re Payton,

No. 13-3172 (10th Cir. July 25, 2013) (unpublished order denying second motion for

authorization and setting forth complete procedural history of Mr. Payton’s cases).

      In April of 2013, Mr. Payton filed his third § 2254 petition. The district court

dismissed the petition as an unauthorized second or successive § 2254 application.

See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam) (“A district court

does not have jurisdiction to address the merits of a second or successive . . . § 2254

claim until this court has granted the required authorization.”). In doing so, the court

found that Mr. Payton presented claims similar to those he presented in his first

petition filed in 2003. Also, the court denied a COA.

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

The granting of a COA is a jurisdictional prerequisite to his appeal from the denial of

his § 2254 application. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). We

will issue a COA “only if [Mr. Payton] has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied

his § 2254 petition on procedural grounds, we will grant a COA only if he shows


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“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).

       We conclude that Mr. Payton has failed to make this showing. Under the

circumstances of this case, it is not debatable that the district court, when presented

with an unauthorized second or successive application, correctly dismissed it for lack

of jurisdiction. This is so because no reasonable jurist could debate the correctness

of the court’s conclusion that Mr. Payton failed to obtain our authorization to file a

second or successive § 2254 petition alleging a claim based on a new rule of law or

newly discovered evidence. See 28 U.S.C. § 2244(b)(2) (setting forth requirements

for filing second or successive § 2254 application). Rather, Mr. Payton’s claims are

the same or similar to claims he asserted in his other § 2254 petitions or motions for

authorization and are an attempt to challenge the same conviction he challenged in

his first § 2254 petition.

       Accordingly, we deny Mr. Payton’s request for a COA and dismiss this matter.

We caution him that any further attempts to challenge his rape convictions may result

in the imposition of sanctions, including filing restrictions.

                                                 Entered for the Court



                                                 ELISABETH A. SHUMAKER, Clerk


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