FILED

United States Court of Appeals

Tenth Circuit

March 1, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID JEWEL NEWTON,

Petitioner-Appellant,

v.

DAVID PARKER, Warden,

Respondent-Appellee.

No. 11-5148

(D.C. No. 4:11-CV-00529-CVE-FHM)

(N.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before MURPHY, HARTZ, and O’BRIEN, Circuit Judges.

On August 23, 2011, David Jewel Newton, a state prisoner proceeding

pro se, filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in the district

court in which he argued that he was actually innocent and received an illegal

sentence. The court dismissed the petition without prejudice for lack of

jurisdiction because Mr. Newton had not obtained authorization from this court to

file a second or successive petition. Because no reasonable jurist would find it

debatable that the court was correct in denying relief under Mr. Newton’s motion

* This order is not binding precedent except under the doctrines of law of the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.
to alter or amend the judgment, we deny a certificate of appealability (COA) and

dismiss the appeal. See 28 U.S.C. § 2253(c) (requiring COA to appeal the

dismissal of a claim under § 2254).

In 2004, Mr. Newton was convicted in Oklahoma of first-degree rape. His

conviction and sentence were affirmed on direct appeal. In 2006, he filed his first

§ 2254 habeas petition challenging the state conviction and sentence. The district

court denied the petition. This court denied his request for a COA in Newton v.

Dinwiddie, 342 F. App’x 421, 422 (10th Cir. 2009). 

In an order dated September 26, 2011, the district court concluded that “the

petition filed in this case is [Mr. Newton’s] second habeas petition and he was

required to obtain authorization from the Tenth Circuit Court of Appeals before

filing this petition.” R., Vol. 1 at 52. As such, the court “dismissed the [petition]

without prejudice for lack of jurisdiction. Should [Mr. Newton] obtain

authorization from the Tenth Circuit, he may refile his petition in this Court.” 

Id.

1

1 On August 26, 2011, just three days after he filed his second § 2254 habeas

petition in the district court, Mr. Newton sought authorization from this court to

file a second or successive § 2254 petition. In denying his authorization motion,

we held, among other things, that Mr. Newton failed to meet the conditions in

28 U.S.C. § 2244(b)(2)(B)(ii), because the newly-discovered facts in his proposed

claim did not establish actual innocence. In re Newton, No. 11-5121 (10th Cir.

Sept. 27, 2011) (unpublished order).

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Mr. Newton then filed a motion under Fed. R. Civ. P. 59(e) to alter or

amend the district court’s September 26, 2011 order. The court treated the

motion as a true motion for relief from judgment and denied it. Mr. Newton seeks

a COA to appeal that denial.

We construe Mr. Newton’s pro se filings liberally. Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam). But Mr. Newton has not – nor could he –

make a case that the district court was wrong in holding that he was required to

obtain this court’s permission to file a second or successive § 2254 habeas

petition.

Where a habeas petitioner brings a “true” motion for post-judgment relief,

“we will require the movant to obtain a certificate of appealability . . . before

proceeding with his or her appeal.” Spitznas v. Boone, 464 F.3d 1213, 1218

(10th Cir. 2006). In such circumstances, we ordinarily “appl[y] the two-part COA

standard the Supreme Court first articulated in Slack v. McDaniel, 529 U.S. 473,

484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).” Dulworth v. Jones, 496 F.3d

1133, 1137 (10th Cir. 2007). In turn, Slack holds that where the district court

denies a habeas petition on procedural grounds, a COA should not issue unless

“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, 529 U.S. at 484 (emphasis added).

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No jurist of reason could debate whether the district court abused its

discretion in denying Mr. Newton’s Rule 59(e) motion. Under 28 U.S.C.

§ 2244(b)(3)(A), Mr. Newton was required to receive authorization from this

court before filing his second or successive § 2254 habeas petition in the district

court. “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 . . . or it may dismiss the motion or petition for

lack of jurisdiction.” In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). We

DENY a COA and dismiss the appeal.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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