                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 28, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    RONALD DEAN LANCASTER,

                Petitioner-Appellant,

    v.                                                   No. 11-4015
                                                 (D.C. No. 2:09-CV-00930-DN)
    ALFRED BIGELOW, Warden;                                (D. Utah)
    STATE OF UTAH,

                Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit
Judge.



         Petitioner Ronald Dean Lancaster, a Utah state prisoner appearing 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.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      In 1987, Mr. Lancaster was convicted of aggravated assault by a prisoner

and was sentenced to an indeterminate sentence of five years to life. 1 He filed his

first 28 U.S.C. § 2254 petition challenging his assault conviction in 1989. This

court affirmed the district court’s denial of this petition. See Lancaster v. Cook,

No. 90-4113, 1991 WL 35186, at *2 (10th Cir. Feb. 20, 1991). Shortly thereafter,

Mr. Lancaster filed a second § 2254 application challenging his assault conviction

and we affirmed the district court’s dismissal of that second petition. Lancaster v.

Van Der Veur, No. 92-4006, 1992 WL 208181, at *1-2 (10th Cir. Aug. 18, 1992)

(holding that all of his claims were either abusive or successive).

      In 2009, Mr. Lancaster filed a third § 2254 petition in the district court

challenging his assault conviction. Under statutory requirements adopted in 1996

as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), however, 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). 2 “A district court does not have jurisdiction


1
       Mr. Lancaster was in prison for his 1978 conviction for second-degree
murder, for which he is also serving an indeterminate sentence of five years to
life. See Lancaster v. Barnes, No. 91-4049, 1992 WL 11324, at *4 (10th Cir.
Jan. 23, 1992) (affirming the denial of his 28 U.S.C. § 2254 petition challenging
that conviction).
2
      A state prisoner may obtain authorization only to file a claim that was not
presented in a prior petition, see 28 U.S.C. § 2244(b)(1), and that either “relies 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
                                                                       (continued...)

                                         -2-
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). Because Mr. Lancaster failed to first obtain circuit-court

authorization to file his § 2254 petition as required by § 2244(b)(3)(A), the district

court dismissed it for lack of jurisdiction. Mr. Lancaster appeals.

      When a district court dismisses a § 2254 motion for lack of jurisdiction

under the procedures applicable to second or successive § 2254 motions, the

prisoner must obtain a COA to appeal. See United States v. Harper, 545 F.3d

1230, 1233 (10th Cir. 2008). When, as here, the district court ruled on procedural

grounds, a COA may be granted when the petitioner shows “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and . . . whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      On appeal, Mr. Lancaster contends that his § 2254 petition was not a second

or successive petition. In his proposed § 2254 petition, he sought to present

claims that his consecutive prison sentence is illegal because Utah’s sentencing

scheme is unconstitutional, and that he received inadequate state post-conviction



2
 (...continued)
relies on facts that “could not have been discovered previously through the
exercise of due diligence” and that “would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense,” id.
§ 2244(b)(2)(B)(i) & (ii).

                                           -3-
evidentiary hearings. He argues on appeal that because he is raising new claims,

he is not required to obtain circuit-court authorization to file his § 2254 petition.

He is mistaken.

      Any post-conviction motion that is filed after an initial § 2254 petition and

that contains a habeas claim is subject to the authorization requirements for a

second or successive filing. See United States v. Nelson, 465 F.3d 1145, 1147-49

(10th Cir. 2006); see also Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006)

(holding that a habeas claim is any claim that “in substance or effect asserts or

reasserts a federal basis for relief from the petitioner’s underlying conviction”).

Mr. Lancaster’s proposed new claims do assert a federal basis for relief from his

conviction and sentence and are, therefore, subject to § 2244(b)’s authorization

requirements. Because Mr. Lancaster did not seek or obtain such authorization,

the district court unquestionably lacked jurisdiction to consider the motion. See

Cline, 531 F.3d at 1251.

      Accordingly, we DENY COA and DISMISS this matter. Mr. Lancaster’s

motion to proceed on appeal in forma pauperis is DENIED 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).

                                                      Entered for the Court


                                                      Wade Brorby
                                                      Senior Circuit Judge

                                           -4-
