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

                                     TENTH CIRCUIT                        November 1, 2011

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 DEXTER LEEMON JOHNSON,

          Petitioner - Appellant,

 v.                                                           No. 11-7062
                                                 (D.C. No. 6:10-CV-00107-RAW-KEW)
 RANDAL WORKMAN, Warden,                                      (E.D. Okla.)

          Respondent - Appellee.



              ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


          Dexter Johnson, an Oklahoma state prisoner proceeding pro se, seeks a certificate

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

or successive 28 U.S.C. § 2254 petition. We deny his request for a COA and dismiss this

matter.

       On April 15, 1996, Mr. Johnson was convicted in Oklahoma state court on one

count of shooting with intent to kill. The Oklahoma Court of Criminal Appeals affirmed

       *This order is not binding precedent, except under the doctrines of law of the case,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.
his conviction on April 22, 1997. See Johnson v. State, No. F-96-482 (Okla. Crim. App.

Apr. 22, 1997). Mr. Johnson did not file a petition for certiorari to the United States

Supreme Court and his conviction became final on July 21, 1997.

       On April 22, 1999, Mr. Johnson filed a state application for post-conviction relief.

The state district court denied his application on August 10, 1999. On November 26,

2002, Mr. Johnson filed his first § 2254 petition for habeas relief challenging his state

court conviction. The United States District Court for the Eastern District of Oklahoma

denied his petition, concluding it was time-barred under the one-year statute of

limitations for filing a § 2254 petition.1 See 28 U.S.C. § 2244(d)(1). Mr. Johnson did not

appeal.

       On March 29, 2010 Mr. Johnson filed a second § 2254 petition challenging his

state court conviction in the same federal district court. The court dismissed his petition.


       1
         The dismissal of a § 2254 petition as time-barred is a decision on the merits for
purposes of determining whether a subsequent petition is second or successive. See Plaut
v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (“The rules of finality, both statutory
and judge made, treat a dismissal on statute-of-limitations grounds the same way they
treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for
failure to prosecute: as a judgment on the merits.”); Murphy v. Klein Tools, Inc., 935 F.2d
1127, 1128-29 (10th Cir.1991) (holding that “a dismissal on limitations grounds is a
judgment on the merits”); see also Quezada v. Smith, 624 F.3d 514, 519-20 (2d Cir.
2010) (“We hold that dismissal of a § 2254 petition for failure to comply with the one-
year statute of limitations constitutes an adjudication on the merits that renders future
petitions under § 2254 challenging the same conviction ‘second or successive’ petitions
under § 2244(b).” (quotations omitted)); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir.
2009) (“We hold that the dismissal of a habeas petition as untimely constitutes a
disposition on the merits and that a further petition challenging the same conviction
would be ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).”).

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In so doing, the court concluded that, in light of the dismissal of Mr. Johnson’s first

§ 2254 action, his second petition was an unauthorized “second and successive” petition

for relief. See 28 U.S.C. § 2244(b). Further, because it concluded that the claims alleged

in Mr. Johnson’s second § 2254 petition were time-barred, the district court declined to

transfer the petition to this court under 28 U.S.C. § 1631.

       Mr. Johnson filed a timely notice of appeal and a request for a COA.

       The granting of a COA is a jurisdictional prerequisite to Mr. Johnson’s appeal

from the district court’s denial of his § 2254 petition. See Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). Where, as here, the district court dismisses a petition on procedural

grounds, we will grant a COA only if the petitioner can demonstrate 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 a state prisoner may file a second or successive petition under § 2254, the

prisoner must “move 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). “When a second

or successive § 2254 [petition] is filed in the district court without the required

authorization from this court, the district court may transfer the matter to this court if it

determines it is in the interest of justice to do so under § 1631, or it may dismiss the

motion or petition for lack of jurisdiction.” In re Cline, 531 F.3d 1249, 1252 (10th Cir.

2008). “Factors considered in deciding whether a transfer is in the interest of justice
                                              -3-
include whether the claims would be time-barred if filed anew in the proper forum,

whether the claims alleged are likely to have merit, and whether the claims were filed in

good faith.” Id. at 1251.

       Here, the district court determined it would not be in the interest of justice to

transfer Mr. Johnson’s successive § 2254 petition because his claims are time-barred

under the one-year statute of limitations for filing a § 2254 petition. See 28 U.S.C.

§ 2244(d)(1).

       Mr. Johnson contends that the district court clearly erred in concluding that his

claims are time-barred. He argues that the statute of limitations for filing his § 2254

petition was tolled pursuant to 28 U.S.C. § 2244(d)(2) when he filed his state application

for post-conviction relief. Section 2244(d)(2) states that “[t]he time during which a

properly filed application for State post-conviction or other collateral review with respect

to the pertinent judgment or claim is pending shall not be counted toward any period of

limitation under this subsection.” See also May v. Workman, 339 F.3d 1236, 1237 (10th

Cir. 2003) (“The one-year period of limitation for filing a federal habeas petition is tolled

or suspended during the pendency of a state application for post-conviction relief

properly filed during the limitations period.”). We have previously explained that under

§ 2244(d)(2), “[o]nly state petitions for post-conviction relief filed within the one year

allowed by AEDPA will toll the statute of limitations.” Clark v. Oklahoma, 468 F.3d 711,

714 (10th Cir. 2006) (emphasis added).

       Mr. Johnson did not file his state petition for post-conviction relief until April 22,
                                             -4-
1999, well after expiration of the one-year period for filing his § 2254 petition.

Accordingly, section 2244(d)(2) does not apply to his § 2254 petition. Additionally, after

reviewing Mr. Johnson’s brief and the record, we do not find any basis for equitable

tolling. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (noting that in “rare

and exceptional circumstances,” the one-year limitations period for filing a § 2254

petition is subject to equitable tolling).

       Mr. Johnson’s brief does not address the district court’s determination that his

second § 2254 petition was an unauthorized successive petition. After reviewing the

record and the district court’s order, we are not persuaded that jurists of reason would

find the district court’s ruling debatable. We therefore hold that Mr. Johnson has failed

to establish that he is entitled to a COA.

       For these reasons, we DENY Mr. Johnson’s request for a COA and DISMISS this

matter.

                                             Entered for the Court



                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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