                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          March 31, 2010
                                   TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court



 GREGORY GIBSON,

        Petitioner–Appellant,
                                                            No. 09-6177
 v.                                                 (D.C. No. 5:08-CV-01082-M)
                                                           (W.D. Okla.)
 DANNY HORTON, Warden,

        Respondent–Appellee.



                                ORDER AND JUDGMENT*

Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      Gregory Gibson, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. For substantially the same reasons stated by the magistrate judge and adopted

by the district court, we deny a COA and dismiss the appeal.

                                            I



       * The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. 32.1.
       In 1988, Gibson was convicted of maiming in Oklahoma state court. Gibson did

not appeal that conviction and served his one-year sentence for that offense. In 1993,

Gibson pled nolo contendre to trafficking in illegal narcotics after two former felony

convictions. He is currently incarcerated for this 1993 conviction.

       After an unsuccessful attempt to obtain state postconviction relief, Gibson filed a

petition for a writ of habeas corpus under § 2254 in the United States District Court for

the Western District of Oklahoma. The case was referred to a magistrate judge, who

determined that the district court lacked jurisdiction over Gibson’s petition. Overruling

Gibson’s objections, the district court adopted the magistrate’s report and

recommendation and dismissed the petition.

                                               II

       Because he did not obtain a COA from the district court, Gibson may not appeal

the district court’s dismissal absent a grant of a COA by this court. § 2253(c)(1)(A). To

obtain a COA, Gibson must make “a substantial showing of the denial of a constitutional

right.” § 2253(c)(2). When a district court denies a habeas petition on procedural

grounds without reaching the underlying constitutional claims, a petitioner is not entitled

to a COA unless he can show both “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). An appellate court has discretion

to resolve either the procedural or the substantive issue first. Id. at 485. Because Gibson



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proceeds pro se, we liberally construe his application for a COA. See Haines v. Kerner,

404 U.S. 519, 520-21 (1972).

       Federal courts lack jurisdiction to consider § 2254 petitions unless the petitioner is

in custody pursuant to the challenged conviction when the petition is filed. Erlandson v.

Northglenn Mun. Court, 528 F.3d 785, 788 (10th Cir. 2008). In his report and

recommendation, the magistrate judge found that Gibson’s federal habeas petition

challenged only his 1988 maiming conviction, and that Gibson was not in custody based

on that conviction when he filed his petition.

       Gibson did not object to the magistrate’s determination that he was no longer in

custody for his maiming conviction. Thus, to the extent his petition sought to challenge

his maiming conviction, we are compelled to conclude that the district court lacked

jurisdiction to consider the merits of his § 2254 petition. See Moore v. United States, 950

F.2d 656, 659 (10th Cir. 1991) (“[F]ailure to make timely objections to the magistrate’s

findings or recommendations waives appellate review of both factual and legal

questions.”).

       Gibson arguably objected to the magistrate’s determination that he challenged

only his maiming conviction. But even if we read his petition to challenge any of his

other convictions, the district court’s dismissal was proper. Gibson’s 1993 drug

trafficking offense is the sole conviction for which he was in custody when he filed this

habeas action, and Gibson has already filed two habeas petitions contesting that

conviction. For the district court to exercise jurisdiction over any second or successive

habeas petitions, Gibson would have to first seek and receive authorization from this

                                            -3-
court. See In re Cline, 531 F.3d 1249, 1250-51 (10th Cir. 2008). He has not done so.

Accordingly, under either construction of Gibson’s petition, reasonable jurists could not

debate the district court’s conclusion that it lacked jurisdiction over his case.

                                              III

       We therefore DENY a COA and DISMISS the appeal. All pending motions

before this court are DENIED.

                                           ENTERED FOR THE COURT



                                           Carlos F. Lucero
                                           Circuit Judge




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