                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 8, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 ERIC MARSHALL,

          Petitioner-Appellant,

 v.

 THE PEOPLE OF THE STATE OF                              No. 09-1555
 COLORADO, and THE ATTORNEY                     (D.C. No. 1:09-CV-1595-ZLW)
 GENERAL OF THE STATE OF                                  (D. Colo.)
 COLORADO,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Eric Marshall, a Colorado state prisoner proceeding pro se, requests a

certificate of appealability (COA) to challenge the district court’s denial of his

habeas petition under 28 U.S.C. § 2254. In 2006, a previous panel of this court

denied Mr. Marshall a COA because his habeas petition was time-barred under 28

U.S.C. § 2244. See Marshall v. Golder, 166 F. App’x 373 (10th Cir. 2006)

(unpublished). The district court adopted the same reasoning when it denied Mr.


      *
        This order is not binding precedent except under the doctrines of law of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.
Marshall’s current application. Although we disagree with the district court’s

analysis, we nonetheless find that Mr. Marshall’s current application must fail.

      Mr. Marshall has already filed one § 2254 petition in the federal courts,

which means that his current petition qualifies as a “second or successive habeas

corpus application.” 28 U.S.C. § 2244(b). Accordingly, before Mr. Marshall

could file his petition in the district court, he needed to ask this court — “the

appropriate court of appeals” — “for an order authorizing the district court to

consider the application.” Id. § 2244(b)(3)(A). Because Mr. Marshall failed to

obtain leave from us to file in the district court as the statute requires, the district

court lacked subject matter jurisdiction over his case. See Spitznas v. Boone, 464

F.3d 1213, 1219 (10th Cir. 2006); Kingsolver v. Ray, 242 F. App’x 476, 478 (10th

Cir. 2007) (unpublished). We thus vacate the order denying the unauthorized

§ 2254 petition.

      Rather than dismiss this petition in its entirety, however, it is our custom to

treat the mistaken COA application as an application to file a second or

successive habeas petition. See Spitznas, 464 F.3d at 1219; Kingsolver, 242

F. App’x at 478. We may only authorize the application if Mr. Marshall raises a

claim that was not presented in a prior application. See 28 U.S.C. § 2244(b)(1).

Furthermore, the application must either “rel[y] on a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that

was previously unavailable,” id. § 2244(b)(2)(A), or it must raise a claim of

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actual innocence, “the factual predicate [for which] could not have been

discovered previously through the exercise of due diligence,” id. § 2244(b)(2)(B).

      Even construing Mr. Marshall’s pro se petition with the solicitude it

deserves, see Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007),

we find that Mr. Marshall has failed to satisfy any of these criteria. Our review

of Mr. Marshall’s filings, as well as the record in this case, reveals that Mr.

Marshall’s current application raises the same state law sentencing claim that the

previous panel dismissed as untimely. See 28 U.S.C. § 2244(b)(1); Marshall,

166 F. App’x at 373. And to the extent it might raise a different claim, it does

not rely on either a new rule of constitutional law or facts undiscoverable at the

time of the previous application. See 28 U.S.C. § 2244(b)(2).

      Because Mr. Marshall has not satisfied the criteria of § 2244(b)(2), we deny

his application to file a second or successive petition under § 2254. And because

he has not demonstrated “the existence of a reasoned, nonfrivolous argument on

the law and facts in support of the issues raised on appeal,” McIntosh v. U.S.

Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997), we also deny his motion for




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leave to proceed in forma pauperis. We caution Mr. Marshall that additional

frivolous and repetitive motions in this court may be met with sanctions. See

United States v. Harper, 545 F.3d 1230, 1234 (10th Cir. 2008).

                                      ENTERED FOR THE COURT



                                      Neil M. Gorsuch
                                      Circuit Judge




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