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

                           FOR THE TENTH CIRCUIT                         May 30, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
TONY BRANTLEY,

             Petitioner - Appellant,

v.                                                       No. 14-6031
                                                  (D.C. No. 5:13-CV-01352-F)
ROBERT PATTON, Director,*                                (W.D. Okla.)

             Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY**


Before LUCERO, O’BRIEN, and HARTZ, Circuit Judges.


      Tony E. Brantley, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s dismissal of his second 28 U.S.C.

§ 2254 habeas petition for lack of jurisdiction. We deny a COA and dismiss the

matter.

      In 2005, Mr. Brantley was convicted in Oklahoma state court of manufacturing

a dangerous substance (methamphetamine), and two counts of possession of a

*
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Robert Patton, the
current Director of the Oklahoma Department of Corrections, is automatically
substituted as Respondent in this case.
**
       This order is not binding precedent except under the doctrines of law of the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.
controlled dangerous substance (methamphetamine and marijuana). He was

sentenced to an aggregate eighty-six year term of imprisonment. The Oklahoma

Court of Criminal Appeals affirmed his convictions and sentence. Mr. Brantley

sought post-conviction relief in state court, but it was denied.

      In 2008, Mr. Brantley filed his first § 2254 habeas petition, asserting ten

grounds for relief. The district court denied the petition, and we denied a COA.

Brantley v. Sirmons, 342 F. App’x 384, 385 (10th Cir. 2009). In December 2013,

Mr. Brantley filed a second § 2254 habeas petition. The district court determined

that this petition was an unauthorized second or successive petition and dismissed it

for lack of jurisdiction. Mr. Brantley now seeks a COA to appeal that dismissal.

      To obtain a COA, Mr. Brantley must show 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).

      A prisoner may not file a second or successive § 2254 habeas petition unless

he first obtains an order from the circuit court authorizing the district court to

consider the petition. See 28 U.S.C. § 2244(b)(3)(A). In the absence of such

authorization, a district court lacks jurisdiction to address the merits of a second or

successive § 2254 habeas petition. See In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam).




                                           -2-
      Mr. Brantley’s first § 2254 habeas petition brought claims attacking the same

conviction that he now seeks to challenge in his second § 2254 habeas petition. We

have explained that after a decision on the merits of a first habeas petition, “any later

habeas petition challenging the same conviction is second or successive and is

subject to the AEDPA requirements.” In re Rains, 659 F.3d 1274, 1275 (10th Cir.

2011) (per curiam). The district court therefore properly characterized

Mr. Brantley’s new petition as a second or successive § 2254 habeas petition.

      In his COA brief, Mr. Brantley does not argue that the district court erred in

making the determination that his new petition was an unauthorized second or

successive § 2254 habeas petition. Rather, he argues the merits of his underlying

habeas claims and asserts that his case was erroneously dismissed and should have

been transferred to this court for authorization instead. But the district court properly

considered whether it would be in the interest of justice to transfer Mr. Brantley’s

successive petition to this court and concluded that it would not be, noting that this

court had already rejected the ineffective assistance, insufficiency of the evidence,

and “newly discovered evidence” arguments in Mr. Brantley’s first habeas action.

      Reasonable jurists could not debate that the district court was correct to treat

Mr. Brantley’s new petition as an unauthorized second or successive § 2254 habeas




                                          -3-
petition and to dismiss it for lack of jurisdiction. Accordingly, we deny a COA and

dismiss this matter.1

                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




1
      At the end of his brief, Mr. Brantley also makes a one-sentence request for
permission to file a second or successive § 2254 petition. The proper procedure for
requesting such relief is to file a motion for authorization that makes a prima facie
showing that he has a new claim that was not presented in a prior habeas petition and
meets the stringent requirements for authorization in 28 U.S.C. § 2244(b)(2).
See 28 U.S.C. § 2244(b)(1)-(3).


                                        -4-
