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

                            FOR THE TENTH CIRCUIT                               March 7, 2018
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
RUSSELL HARRISON,

      Petitioner - Appellant,

v.                                                            No. 18-8005
                                                    (D.C. No. 1:17-CV-00207-SWS)
THE ATTORNEY GENERAL OF THE                                    (D. Wyo.)
STATE OF WYOMING,

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges.
                 _________________________________

       Russell Harrison, a Wyoming prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal from the district court’s dismissal of a successive

28 U.S.C. § 2254 habeas application. We deny a COA and dismiss this matter.

       In 1981, Mr. Harrison accepted a plea bargain, pleaded guilty to one count of first

degree murder, and was sentenced to life in prison. In 2002, he filed two habeas

applications challenging that conviction. He filed a third application in 2007. All of the

claims in these applications were based on his understanding that by pleading guilty to

first degree murder he would be paroled in seven to eight years (resulting in serving a


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
shorter sentence than would have been required if he were convicted of second degree

murder). The district court denied the first 2002 application as untimely and construed

the second 2002 application as a motion for reconsideration. This court held, however,

that the second 2002 application was subject to the restrictions on second § 2254

applications and vacated the order disposing of it. Harrison v. Wyo. Dep’t of Corr. State

Penitentiary Complex Adm’r, No. 02-8041, slip op. at 2 (10th Cir. Jan. 28, 2003)

(unpublished order). The district court denied the 2007 application as untimely, and

Mr. Harrison did not appeal.

       In 2017, Mr. Harrison filed another § 2254 application, asserting a violation of his

plea agreement to be released in seven to eight years and a lack of a factual basis for his

plea. The district court dismissed the 2017 application as untimely and an unauthorized

second or successive § 2254 application that the court lacked jurisdiction to decide,

see In re Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008) (per curiam). Mr. Harrison now

seeks to appeal from that decision. To do so, he must obtain a COA. See 28 U.S.C.

§ 2253(c)(1)(A). Where, as here, a district court has dismissed a filing on procedural

grounds, for a COA the movant must 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).

       Before this court, Mr. Harrison fails to address the grounds for the district court’s

dismissal—that the application was untimely and it was subject to the statutory

restrictions on second or successive § 2254 applications. Instead, he focuses on the

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merits of his claims, arguing that he has not received the benefit of his plea bargain. We

do not consider the merits, however, because no reasonable jurist could debate the district

court’s procedural decision to dismiss an unauthorized successive § 2254 application.

       As discussed, Mr. Harrison has filed several § 2254 applications. The dismissal of

his first § 2254 application as time-barred counts as a disposition on the merits. See In re

Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam). And this court has made it

clear that after filing his first 2002 application, he became subject to the restrictions of

28 U.S.C. § 2244(b) and must obtain this court’s authorization before he can file another

§ 2254 application. Harrison, No. 02-8041, slip op. at 2. Because Mr. Harrison did not

obtain such authorization before filing the 2017 application, the district court had no

jurisdiction to consider it. See Cline, 531 F.3d at 1251. Its choices were to dismiss the

filing or transfer it to this court for authorization, see id. at 1252, and no reasonable jurist

could debate the decision to dismiss.

       Mr. Harrison’s motion to proceed without prepayment of costs and fees is granted.

But under 28 U.S.C. § 1915(a) and (b)(1), only prepayment is excused and Mr. Harrison

remains obligated to pay the full amount of costs and fees. Accordingly, he shall

continue making partial payments until that obligation is satisfied. A COA is denied and

the matter is dismissed.


                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk


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