                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   July 9, 2012
                               TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                  Clerk of Court

 WOODIE MACK ASHFIELD,

             Petitioner - Appellant,                   No. 12-1121
                                              (D.C. No. 1:12-CV-00140-LTB)
 v.                                                     D. Colorado
 JEFFERY E. THOMAS; THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

             Respondents - Appellees.


         ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, EBEL, and HARTZ, Circuit Judges.


      Pro se petitioner, Woodie Mack Ashfield, seeks a certificate of

appealability (“COA”) so he can appeal the district court’s dismissal of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Ashfield’s motion to proceed in forma pauperis

on appeal is granted.

      The district court determined Ashfield filed a § 2254 petition in 2003,

challenging the same Colorado conviction for second degree murder that he

challenges in the instant matter. The 2003 petition was dismissed as untimely and
this court denied a COA. Ashfield v. Pugh, No. 03-1427 (10th Cir. Jan. 21, 2004).

The district court concluded it lacked jurisdiction over the instant § 2254 petition

because it is second or successive. The court further concluded it was not in the

interest of justice to transfer the matter to this court and, accordingly, exercised

its discretion to dismiss the action. See In re Cline, 531 F.3d 1249, 1251-52 (10th

Cir. 2008) (“When a second or successive § 2254 . . . claim is filed in the district

court without the required authorization from this court, the district court may

transfer the matter to this court if it determines it is in the interest of justice to do

so . . . or it may dismiss the motion or petition for lack of jurisdiction.”).

      Ashfield cannot appeal the district court’s disposition of his § 2254 petition

unless he first obtains a COA. Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2003). He is not entitled to a COA unless he makes “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district

court dismissed his petition on procedural grounds, we will grant a COA only if

that procedural ruling is reasonably debatable. See Slack v. McDaniel, 529 U.S.

473, 484 (2000).

      No jurist of reason could debate whether the district court erred in

concluding that Ashfield’s § 2254 petition is successive or abused its discretion in

concluding it was not in the interest of justice to transfer the petition to this court.

Accordingly, we deny Ashfield a COA. In an abundance of caution, however, we

construe Ashfield’s application for a COA and appellate brief as a request for

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authorization to file a second or successive habeas petition. See Pease v. Klinger,

115 F.3d 763, 764 (10th Cir. 1997). Our review of that implied application leads

us to conclude that Ashfield has failed to make the prima facie showing necessary

for filing a second or successive § 2254 petition. Even if we assume Ashfield’s

claims were not presented in his prior habeas petition, those claims do not involve

either newly discovered evidence or a previously unavailable, new rule of

constitutional law made retroactive to cases on collateral review by the Supreme

Court. See 28 U.S.C. § 2244(b)(2).

      Ashfield’s request for a COA is denied and his appeal from the district

court’s disposition of his § 2254 petition is dismissed. His implied application

for leave to file a second or successive § 2254 petition is also denied. Ashfield is

reminded that this court’s denial of authorization to file a successive habeas

petition cannot be subject to a petition for rehearing or a petition for a writ of

certiorari. See 28 U.S.C. § 2244(b)(3)(E).

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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