FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 22, 2014
Elisabeth A. Shumaker
Clerk of Court
JERRY LEE MAYS,
Petitioner - Appellant,
v. No. 14-5054
(D.C. No. 4:14-CV-00113-TCK-TLW)
TRACY McCOLLUM, Warden, (N.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
Jerry Lee Mays, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2254
habeas petition for lack of jurisdiction. We deny a COA and dismiss the matter.
Mr. Mays was found guilty of two counts of shooting with intent to kill
(Counts I and IV), felonious possession of a firearm (Count II), and assault and
battery (Count III)—all enhanced because he had two or more prior felony
convictions. He was sentenced to 40 years for Counts I and IV, 30 years for Count
II, and 90 days for Count III, with the sentences to be served consecutively. He filed
*
This order is not binding precedent except under the doctrines of law of the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.
a direct appeal challenging his convictions and sentences. The Oklahoma Court of
Criminal Appeal (OCCA) affirmed his convictions, but it reduced his sentences on
Counts I and IV to 30 years.
Mr. Mays sought post-conviction relief in Oklahoma state court, but his
petition was denied. His subsequent appeal to the OCCA was unsuccessful. He filed
a second application for post-conviction relief in the state district court, which was
also denied, and he pursued a second unsuccessful collateral appeal. Mr. Mays then
filed his first § 2254 habeas petition in federal court. The district court denied the
petition, and we denied his request for a COA. Mays v. Dinwiddie, 441 F. App’x
575, 576, 577 (10th Cir. 2011).
In 2011, Mr. Mays filed a second § 2254 petition in federal district court. The
district court dismissed the petition, and Mr. Mays sought a COA to appeal the
dismissal. We denied his request for a COA. Mays v. Martin, 512 F. App’x 799, 799
(10th Cir. 2013).
In March of this year, Mr. Mays filed a document that the district court
construed as a § 2254 petition. The court directed Mr. Mays to file an amended
petition to cure certain deficiencies. Mr. Mays did as he was directed. The district
court then dismissed the amended petition for lack of jurisdiction because it was a
second or successive petition filed without prior authorization from this court.
Mr. Mays seeks a COA to appeal from that decision.
-2-
To obtain a COA, Mr. Mays 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).
As the district court noted in its dismissal order, Mr. Mays’ amended petition
is a successive petition that challenges the constitutionality of his conviction and
sentence, but Mr. Mays did not allege that he obtained the necessary authorization to
bring a successive § 2254 petition. The court therefore correctly determined that it
lacked jurisdiction to consider the § 2254 petition.
In his COA application, Mr. Mays fails to explain how the district court erred
in dismissing his case for lack of jurisdiction. Reasonable jurists could not debate
that the district court was correct to treat Mr. Mays’ new petition as an unauthorized
second or successive § 2254 habeas petition and to dismiss it for lack of jurisdiction.
-3-
Accordingly, we deny a COA and dismiss this matter.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
-4-