                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 26, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


    ROBERTO ANTONIO JACKSON,

                Petitioner!Appellant.

    v.                                             No. 11-6098 & 11-6133
                                                 (D.C. No. 5:11-CV-00009-D)
    MIKE MULLIN,                                        (W.D. Okla.)

                Respondent!Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


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



         Roberto Antonio Jackson, a 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 for lack of

jurisdiction. We deny COA and dismiss the matter.

         In 2003, Mr. Jackson was convicted in Oklahoma state court on one count

of possession with intent to distribute marijuana and one count of possession with

intent to distribute cocaine. He was sentenced to thirty years’ imprisonment on



*
       This order is not binding precedent except under the doctrines of law of the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.
each count, the terms to be served concurrently. On direct appeal the Oklahoma

Court of Criminal Appeals (OCCA) affirmed his convictions and sentences.

Mr. Jackson pursued state post-conviction relief, but the OCCA affirmed the trial

court’s denial of relief.

      In 2007, Mr. Jackson filed his first § 2254 petition for habeas relief

challenging his state court convictions and sentences. The district court denied

relief and this court denied Mr. Jackson’s request for a COA. See Jackson v. Ray,

292 F. App’x 737, 739 (10th Cir. 2008).

      In January 2011, Mr. Jackson filed a second § 2254 petition challenging his

state court convictions. A prisoner may not file a second or successive § 2254

petition unless he first obtains an order from the circuit court authorizing the

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

court does not have jurisdiction to address the merits of a second or successive

. . . § 2254 claim until [the circuit] court has granted the required authorization.”

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). Because

Mr. Jackson failed to first obtain circuit-court authorization to file his second

§ 2254 petition, the district court dismissed it for lack of jurisdiction.

      Mr. Jackson now seeks a COA to appeal the dismissal of his second § 2254

petition. He complains that the district court should have transferred his petition

to this court instead of dismissing it for lack of jurisdiction. In order to receive a

COA, Mr. Jackson must show “that jurists of reason would find it debatable

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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).

      When presented with an unauthorized second or successive claim, “the

district court may transfer the matter to this court if it determines it is in the

interest of justice to do so under [28 U.S.C. ] § 1631, or it may dismiss the . . .

petition for lack of jurisdiction.” Cline, 531 F.3d at 1252. Here, the district court

determined it would not be in the interest of justice to transfer Mr. Jackson’s

successive § 2254 petition. Because Mr. Jackson filed an unauthorized second or

successive § 2254 petition and his new claims are not likely to meet the

authorization requirements in § 2244(b)(2) for filing a successive petition,

reasonable jurists could not debate that the district court was correct in its

procedural ruling to dismiss the successive § 2254 petition for lack of jurisdiction

instead of transferring it to this court. Accordingly, we DENY COA in case no.

11-6098 and DISMISS the matter.

      We also DENY Mr. Jackson’s motion to proceed on appeal in forma

pauperis (IFP) because he has failed to advance “a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.”

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Mr. Jackson

complains that the district court should have transferred his unauthorized second

or successive petition instead of dismissing it, but he acknowledges in his COA

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application that “the district court can either dismiss or transfer [the] petition to

the federal court of appeals.” COA app. at 5. He has presented no authority to

support a conclusion that the district court abused its discretion in dismissing his

unauthorized successive § 2254 petition. Moreover, Mr. Jackson failed to show

any prejudice by the district court’s decision to choose dismissal over transfer

because he remains free to seek authorization from this court. His COA

application is therefore frivolous and does not entitle him to proceed IFP on

appeal.

      Mr. Jackson also filed a request for a COA from the district court’s denial

of his motion to proceed IFP on appeal. This is not the proper procedure to seek

reconsideration of the district court’s IFP decision. The proper procedure is to

file a motion for IFP in this court, which he did. As noted above, we have

independently reviewed the IFP motion and denied it. Accordingly, we DISMISS

the appeal in case no. 11-6133.



                                         Entered for the Court,




                                         ELISABETH A. SHUMAKER, Clerk




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