                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 27 2003
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


STANLEY BROWN-BEY,

          Petitioner - Appellant,
                                                        No. 02-1228
v.
                                                     D.C. No. 01-M-727
                                                       (D. Colorado)
MICKEY RAY; ATTORNEY
GENERAL OF THE STATE OF
COLORADO,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



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

unanimously that oral argument would not materially assist 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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Stanley Brown-Bey filed the instant 28 U.S.C. § 2254 habeas petition in

federal district court challenging his Colorado state conviction. The district court

recognized that the claim raised in Brown-Bey’s petition had been raised in a

previous § 2254 habeas petition and in a previous application to this court

pursuant to 28 U.S.C. § 2244(b)(3) to file a second or successive petition.

Because the claim had been previously raised, the district court denied the

petition and dismissed the action. The matter is now before this court on Brown-

Bey’s application for a certificate of appealability (“COA”).

      Successive habeas petitions cannot be filed in district court until the

petitioner “move[s] in the appropriate court of appeals for an order authorizing

the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

Because Brown-Bey failed to obtain authorization from this court before filing

his successive § 2254 habeas petition, the district court lacked jurisdiction to

consider the motion.   1
                           Accordingly, we must vacate the district court’s order

denying the motion.




      1
        When the motion was filed without the required appellate court
authorization, it should have been transferred to this court. See Coleman v.
United States, 106 F.3d 339, 341 (10th Cir. 1997) (“[W]hen a second or
successive petition for habeas corpus relief under § 2254 . . . is filed in the
district court without the required authorization by this court, the district court
should transfer the petition or motion to this court in the interest of justice
pursuant to [28 U.S.C.] § 1631.”).

                                            -2-
      This court would ordinarily construe Brown-Bey’s application for a COA

and appellate brief as an application requesting authorization to file a second or

successive habeas petition.   See Pease v. Klinger , 115 F.3d 763, 764 (10th Cir.

1997). As noted by the district court, however, Brown-Bey has already applied

for and been denied permission by this court to file a second or successive

petition relating to Colorado’s alleged violation of the Interstate Agreement on

Detainers. Accordingly, Brown-Bey’s filings are more akin to a petition for

rehearing of this court’s previous denial of permission to file a successive § 2254

petition. Such petitions for rehearing are prohibited by the Antiterrorism and

Effective Death Penalty Act of 1996.    See 28 U.S.C. 2244(b)(3)(E). In these

circumstances, the appropriate course is to strike Brown-Bey’s filings pursuant to

§ 2244(b)(3)(E). Accordingly,    this court VACATES the order of the district

court denying Brown-Bey’s petition and STRIKES the materials filed before this

court. Brown-Bey’s request to proceed in forma pauperis is DENIED as moot.

Brown-Bey is specifically reminded that this order is not “appealable and shall

not be the subject of a petition for rehearing or for a writ of certiorari.” 28

U.S.C. § 2244(b)(3)(E).

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge

                                          -3-
