UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JAMES WILFRED HALL, Petitioner

− Appellant,

v. JAMES FALK, Warden; JOHN W. SUTHERS, Attorney Ge neral of the State of Colorado, Respondents

− Appellees. No. 13-1291 (D.C. No. 1:13-CV-01212-LTB) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before TYMKOVICH , O’BRIEN , and HOLMES , Circuit Judges.

James Wilfred Hall seeks a certificate of appealabili ty (COA) to appeal the district court’s dism issal of his 28 U.S.C. § 2254 application as an unauthorized second or successive application. See 28 U.S.C. § 2244(b)(2), (3). We deny a COA and dismiss this matter. Mr. Hall was convicted of first-degr ee murder and sentenced to imprisonment for life without parole. After challenging his conviction in the state courts, he filed a § 2254 application for federal habeas relief in 2012, arguing th at his conviction was

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 21, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - void for lack of subject matter jurisdicti on because he had not been indicted by a grand jury, but instead had been charged thr ough an information. The district court dismissed the application as barred by the one-year limitation period for § 2254 applications. See 28 U.S.C. § 2244(d). In 2013, Mr. Hall filed a “Motion to Quash,” which the district court determined was an attempt to challenge his Colorado murd er conviction. The court ordered Mr. Hall to file his claims on the court-approved form for § 2254 applications and to comply with other pr ocedural requirements. Mr. Hall did so, again asserting that the state trial court lacked subject ma tter jurisdiction to convict him because he had not been indicted by a grand jury. The district court evaluated his application and determined that it was an unauthorized second-or-successive § 2254 application. Concluding that it was not in the interest of justice to transfer the application to this court for authorization, the court dismis sed the application for lack of jurisdiction. To appeal the dismissal, Mr. Hall must secure a COA. To do so, he must show “that jurists of reason would find it debatabl e whether the petition states a valid claim of the denial of a constituti onal right and that jurists of reason would find it debatable whether the district court was corr ect in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). He cannot meet these requireme nts, however, because the district court undoubtedly was corr ect in its procedural ruling.- 3 - Mr. Hall pursued relief under § 2254 in 2012. The dismissal of that application as time-barred is considered an adjudica tion on the merits, making the 2013 application a second or successive applicati on for habeas relief. See In re
Rains , 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam) (“The dismissal of [petitioner’s] first habeas petition as time-barred was a decision on the merits, and any later habeas petition ch allenging the same conviction is second or successive and is subject to the [§ 22 44(b)] requirements.”). Mr. Hall complains that th e district court did not reac h the merits of his claim that the state court could proceed against him only by way of indictment. But Congress has placed strict limitations on second or successive § 2254 applications, requiring that they be authorized by this cour t before proceeding in the district court,

see 28 U.S.C. § 2244(b)(3), and that th ey be authorized only under limited circumstances, see id. § 2244(b)(2). Because the 2013 application was a second or successive § 2254 application th at had not been authorized by this court, the district court did not have jurisdic tion to reach the merits. See In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). The court had only two choices: dismiss the application for lack of jurisdiction, or tran sfer it to this court for authorization. See id. at 1251-52. It gave sound re asons for declinin g to transfer. See id. In addition, it appears that the 2013 app lication raised the sa me claim that was presented in the 2012 application. Under § 2244(b)(1), “[a] claim presented in a second or successive habeas corpus application under section 2254 that was- 4 - presented in a prior application shall be dism issed.” Accordingly, even if this claim were allowed to proceed, it would be subject to summary dismissal under § 2244(b)(1). Mr. Hall’s motion to proceed without prep ayment of costs and fees is granted. The motion for change of venue is denied. The application for COA is denied and this matter is dismissed.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk