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

                            FOR THE TENTH CIRCUIT                                July 7, 2017
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
JON LESLIE CHAPMAN,

      Petitioner - Appellant,

v.                                                           No. 17-8043
                                                    (D.C. No. 2:17-CV-00075-NDF)
MICHAEL PACHECO, Wyoming                                       (D. Wyo.)
Department of Corrections Warden;
PETER K. MICHAEL, Wyoming Attorney
General; ROBERT O. LAMPERT,
Wyoming Department of Corrections
Director,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and MATHESON, Circuit Judges.
                 _________________________________

       Jon Leslie Chapman, a Wyoming prisoner proceeding pro se, seeks a certificate of

appealability (COA) to challenge the district court’s determination that his 28 U.S.C.

§ 2254 habeas application is an unauthorized second or successive application, over

which the district court lacks jurisdiction. We deny a COA and dismiss this matter.

       Chapman pled guilty to attempted second degree murder in Wyoming state court,

and on February 10, 2010, the court entered judgment and sentenced him to 25 to 50


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
years’ imprisonment. Several days after pleading guilty, Chapman filed a motion to

withdraw his plea. In mid-March, 2010, while his motion to withdraw the plea was

pending, Chapman filed a notice of appeal with the state court. The district court

eventually denied Chapman’s motion to withdraw his plea, and the Wyoming Supreme

Court affirmed on appeal. See Chapman v. State, 300 P.3d 864, 866, 879 (Wyo. 2013).

Since then, Chapman has repeatedly and unsuccessfully challenged his plea, conviction,

and sentence in both state and federal court.

       Chapman’s first habeas petition was unsuccessful. See Chapman v. Lampert,

616 F. App’x 889 (10th Cir. 2015). Chapman’s second petition was dismissed by the

district court for lack of jurisdiction because he had not obtained authorization from this

court to file it. We denied Chapman a COA and dismissed the matter. See Chapman v.

Lampert, 646 F. App’x 661 (10th Cir. 2016). Undeterred, Chapman filed a third § 2254

petition, which was again dismissed for lack of jurisdiction because it was another

unauthorized second or successive petition. Chapman did not seek to appeal that order;

instead he filed his fourth § 2254 petition.

       The district court concluded that the petition was an unauthorized second or

successive § 2254 application over which it lacked jurisdiction. See In re Cline, 531 F.3d

1249, 1251 (10th Cir. 2008) (per curiam) (“A district court does not have jurisdiction to

address the merits of a second or successive . . . § 2254 claim until this court has granted

the required authorization.”); see also 28 U.S.C. § 2244(b)(3)(A) (“Before a second or

successive [§ 2254] application . . . is filed in the district court, the applicant shall move



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in the appropriate court of appeals for an order authorizing the district court to consider

the application.”). Chapman now seeks to appeal.

       To appeal, Chapman 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). We bypass the constitutional question

because we can easily dispose of this matter based on the procedural one. See id.

       To avoid the bar to successive petitions, Chapman argues that he is not attacking

the conviction or sentence that underlay the appeal concerning the withdrawal of his

guilty plea; instead, he wants to reinstate and prosecute the appeal that was filed in March

2010. But the 2010 appeal that Chapman seeks to reinstate is from the same conviction

and sentence—not a new state court judgment. So whether by way of a new direct appeal

or otherwise, Chapman is seeking to attack the same judgment and sentence that was

originally imposed upon him and which he has previously challenged unsuccessfully by

way of his previous § 2254 petitions. Cf. Magwood v. Patterson, 561 U.S. 320, 323-24

(2010) (a § 2254 application challenging a new sentence imposed after an earlier,

successful § 2254 petition, was directed at a new judgment and therefore not second or

successive).

       Considering Chapman’s pro se application liberally, see Garza v. Davis, 596 F.3d

1198, 1201 n.2 (10th Cir. 2010), there is nothing debatable about the district court’s

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procedural ruling that Chapman seeks to attack the same judgment and sentence.

Therefore, he must obtain authorization from this court to file his § 2254 application.

Because he did not obtain such authorization, the district court lacked jurisdiction to

consider the application. See Cline, 531 F.3d at 1251.

       Chapman’s motion for leave to proceed on appeal without prepayment of costs or

fees is granted. But only prepayment of fees is waived, not the fees themselves.

28 U.S.C. § 1915(a)(1), (b). A COA is denied and this matter is dismissed.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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