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

                            FOR THE TENTH CIRCUIT                          March 26, 2018
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
STEVAN CHAVEZ,

      Petitioner - Appellant,

v.                                                          No. 17-2207
                                                 (D.C. No. 1:17-CV-00756-RB-LF)
STATE OF NEW MEXICO;                                         (D. N.M.)
V. HORTON; SECOND JUDICIAL
DISTRICT,

      Respondents - Appellees.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HOLMES, O’BRIEN, and BACHARACH, Circuit Judges.
                  _________________________________

      Stevan Chavez is a state prisoner proceeding pro se. In 1999, he pleaded

guilty in New Mexico state court to three counts of first degree murder and was

sentenced to three life sentences. In 2017, he filed a motion seeking relief from his




      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. 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 and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,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.
state sentences pursuant to 28 U.S.C. § 22541 and 18 U.S.C. § 3582(c)(2). The

district court dismissed both requests for lack of jurisdiction. Mr. Chavez now

appeals from the district court’s dismissal of his request for sentencing relief

pursuant to 18 U.S.C. § 3582(c)(2). He also seeks a certificate of appealability

(COA) to appeal from the district court’s dismissal of his 28 U.S.C. § 2254 habeas

petition. We affirm the district court’s dismissal of the request for relief pursuant to

§ 3582(c)(2), and we deny a COA to appeal from the dismissal of the § 2254 habeas

petition.

       In 2003, Mr. Chavez filed his first habeas petition, which the district court

dismissed as time-barred. As the district court explained, the dismissal of

Mr. Chavez’s “‘first habeas petition as time-barred was a decision on the merits, and

any later habeas petition challenging the same conviction is second or successive.’”

R. at 18 (quoting In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam)). In

the underlying petition, Mr. Chavez again sought to challenge his same convictions

and sentences. Because he had not received authorization from this court to file a

successive § 2254 habeas petition, the district court dismissed the petition for lack of

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

       1
        Although Mr. Chavez indicated in his filing that he was seeking relief under
28 U.S.C. § 2255, the district court explained that § 2255 applies only to prisoners in
federal custody seeking to challenge a federal conviction or sentence. Because
Mr. Chavez is in state custody and he seeks relief from his state convictions and
sentences, the district court construed the filing as a § 2254 habeas petition.
Mr. Chavez does not challenge the district court’s decision to construe his filing as a
§ 2254 habeas petition.


                                            2
      Mr. Chavez now seeks a COA to appeal from the dismissal of his § 2254

habeas petition. To obtain a COA, he must show 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). He

has not made this showing.

      A prisoner may not file a second or successive § 2254 habeas petition unless

he first obtains an order from the circuit court authorizing the district court to

consider the petition. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a

district court lacks jurisdiction to address the merits of a second or successive § 2254

habeas petition. See Cline, 531 F.3d at 1251.

      In his request for a COA, Mr. Chavez does not explain how the district court

erred in either determining that his § 2254 habeas petition was second or successive

or in dismissing his petition for lack of jurisdiction because he had not received the

requisite circuit-court authorization. Instead, he argues the merits of his underlying

successive habeas claims. Reasonable jurists could not debate the district court’s

procedural ruling to dismiss Mr. Chavez’s unauthorized second or successive § 2254

habeas petition for lack of jurisdiction. Accordingly, we deny his request for a COA.

      As for Mr. Chavez’s request for sentencing relief pursuant to § 3582(c)(2), the

district court explained: “‘Federal courts generally lack jurisdiction to modify a term

of imprisonment once it has been imposed. . . . But a district court may modify a

sentence when it is statutorily authorized to do so.” R. at 21 (quoting United States

                                            3
v. Graham, 704 F.3d 1275, 1277 (10th Cir. 2013) (alteration in original)). Section

3582(c)(2) authorizes a district court to reduce a sentence “based on a sentencing

range that has subsequently been lowered by the Sentencing Commission.” Because

§ 3582(c)(2) is a federal criminal statute and does not apply to a state prisoner

sentenced under state law like Mr. Chavez, the district court dismissed this request

for lack of jurisdiction. In his combined opening brief and request for a COA,

Mr. Chavez does not explain how the district court erred in dismissing for lack of

jurisdiction his request for sentencing relief pursuant to § 3582(c)(2). Accordingly,

he has waived any challenge to that dismissal and we affirm the district court’s

decision. See Tran v. Trustees of State Colleges in Colorado, 355 F.3d 1263, 1266

(10th Cir. 2004) (“Issues not raised in the opening brief are deemed abandoned or

waived.” (internal quotation marks omitted)).

      For the foregoing reasons, we deny Mr. Chavez’s request for a COA to appeal

from the dismissal of his § 2254 habeas petition and we affirm the district court’s

dismissal of his request for relief pursuant to § 3582(c)(2). We also deny as moot

Mr. Chavez’s request to proceed without prepayment of costs or fees. The relevant

statute does not permit litigants to avoid payment of filing and docketing fees, only

prepayment of those fees. See 28 U.S.C. § 1915(a)(1), (b)(1). Mr. Chavez remains

obligated to pay all filing and docketing fees.


                                            Entered for the Court
                                            Per Curiam



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