FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 18, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
DAVID M. PRICE,
Petitioner - Appellant,
No. 09-3302
v.
(D. Kansas)
(D.C. No. 5:09-CV-03190-WEB)
STATE OF KANSAS, ex rel.,
STEVEN N. SIX, Attorney General,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
This matter is before the court on David Price’s pro se request for a
certificate of appealability (“COA”). Price seeks a COA so he can appeal the
district court’s dismissal of his 28 U.S.C. § 2254 petition. See 28 U.S.C.
§ 2253(c)(1)(A). Because Price has not “made a substantial showing of the denial
of a constitutional right,” id. § 2253(c)(2), this court denies his request for a COA
and dismisses this appeal.
At the time of the filing of the instant § 2254 petition, Price was
incarcerated pursuant to a judgment of the Kansas Supreme Court, which found
him in indirect contempt for failing to cease the unauthorized practice of law.
The district court dismissed Price’s § 2254 petition for lack of jurisdiction,
concluding it was an unauthorized successive habeas petition. See 28 U.S.C.
§ 2244(b)(3) (“Before a second or successive application permitted by this section
is filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.”).
In particular, the district court noted Price had filed a previous § 2254 petition in
the United States District Court for the District of Kansas on August 5, 2009; the
district court had denied that petition on the merits on August 18, 2009; and Price
had not appealed that decision. 1 Because Price failed to obtain permission from
this court before filing the instant petition, the district court concluded it lacked
jurisdiction. Furthermore, because the instant petition did not present any ground
for relief not available at the time of the filing of Price’s August 5th petition and
did not assert any new claim that appeared meritorious, the district court declined
to transfer the petition to this court under 28 U.S.C. § 1631. In re Cline, 531 F.3d
1249, 1252 (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
1
Price did eventually appeal from the denial of his August 5th § 2254
petition. This court, however, dismissed the appeal as untimely in an unpublished
order. Price v. Kansas, No. 09-3268, at 2 (10th Cir. Dec. 15, 2009).
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interest of justice to do so under § 1631, or it may dismiss the motion or petition
for lack of jurisdiction.”).
The granting of a COA is a jurisdictional prerequisite to Price’s appeal
from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, Price must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court
denies a petition on procedural grounds, a COA may issue only if “the prisoner
shows, at least, 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). As noted above, the
district court dismissed Price’s petition as an unauthorized second or successive
§ 2254 petition. This is a procedural ruling requiring a COA. See United States
v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (discussing the COA analysis for
an unauthorized § 2255 motion).
Having undertaken a review of Price’s appellate filings, the district court’s
order, and the entire record before this court pursuant to the framework set out by
the Supreme Court in Miller-El, we conclude Price is not entitled to a COA. The
district court’s procedural determination—that Price’s § 2254 petition was an
unauthorized second or successive petition—is not reasonably subject to debate
and the issues Price seeks to raise on appeal are not adequate to deserve further
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proceedings. In particular, Price’s appellate filings do not even address the
district court’s conclusion that the instant § 2254 petition is an unauthorized
successive habeas petition. Instead, he challenges only the state court orders that
were the subject of the August 5th petition. Accordingly, this court DENIES
Price’s request for a COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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