UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

SHERMAN L. GALLOWAY, Petitioner - Appellant,

v. RAY ROBERTS, Secretary of Corrections; STATE OF KANSAS, Respondents - Appellees. No. 16-3017 (D.C. No. 5:14-CV-03165-SAC-DJW) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HOLMES , MATHESON , and PHILLIPS , Circuit Judges.
Sherman L. Galloway, a pro se 1 Kansas prisoner, seeks a certificate of appealability (COA) to challe nge the district court’s judg ment dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. 2 See 28 U.S.C.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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.
1 We liberally construe Mr. Galloway’s pro se materials but do not act as his advocate. See United States v. Pinson , 584 F.3d 972, 97 5 (10th Cir. 2009).
2 Mr. Galloway’s notice of appeal referenc ed the denial of his motion to alter or amend filed under Fed. R. Civ. P. 59(e) , but his COA materials do not mention or otherwise challenge that ruling. We accordingly restrict our analysis to the district court’s underlying judgment. See Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159,
(continued)

FILED United States Court of Appeals Tenth Circuit 

### April 29, 2016
Elisabeth A. Shumaker Clerk of Court- 2 - § 2253(c)(1)(A) (requiring a COA to appeal the dismissal of a § 2254 proceeding). For the following reasons, we deny a COA and dismiss this matter.
I Mr. Galloway is presently serving a pris on term of 60 years to life for sexual assaults and other crimes he committed ag ainst two women. His convictions, which were obtained in separate tr ials, were affirmed on direct appeal, and his efforts in state court for post-convicti on relief were unavailing. See Galloway v. Shelton , No. 94,374, 2005 WL 3098732, at *1 (Kan. Ct . App. Nov. 18, 2005) (per curiam) (unpublished) (describing pro cedural history). In 1990, Mr. Galloway filed his first § 2254 petition, which the di strict court denied. Galloway v. Roberts , No. 90-CV3148-S, 1991 WL 47404 (D. Ka n. Mar. 19, 1991) (unpublished). We affirmed the denial of relief. Galloway v. Roberts , No. 91-3125, 1991 WL 172667, at *2 (10th Cir. Sept. 5, 1991) (u npublished). Thereafter, Mr . Galloway filed two more unsuccessful second or su ccessive § 2254 petitions, Galloway v. McKune , No. 94-CV-3123-DES (D. Kan. Oct. 26, 1994); Galloway v. McKune , No. 98-CV3347-DES (D. Kan. Aug. 4, 19 99), and two unsuccessful ci vil actions challenging his convictions, Galloway v. Shelton , No. 03-CV-3362-GTV (D. Kan. Oct. 20, 2003); Galloway v. McKune , No. 07-CV-3105-SAC (D. Kan. July 13, 2007).

______________ ____________ 1166 (10th Cir. 2012) (“[I]ssues designated for review ar e lost if they are not actually argued in the party’s brief.” (int ernal quotation marks omitted)).- 3 - Most recently, Mr. Galloway filed in the district court a § 2254 petition, asserting that his convicti ons were invalid because th e prosecution never properly charged him with the crimes for which he was convicted. He al so claimed, based on the same theory that his c onvictions were invalid becau se he was never lawfully charged, that the Kansas Pa role Board lacked authority and jurisdiction to consider his suitability for parole. A magistrate judge reviewed the petition and directed Mr. Galloway to show cause why it should not be dismissed for lack of jurisdiction as an unauthorized second or successive § 2254 petition. Afte r Mr. Galloway filed his response, the district court concluded the petition was indeed an unauthorized second or successive § 2254 petition and dismissed it for lack of jurisdiction. Mr. Galloway moved the court to alter or am end its judgment under Fed. R. Civ. P. 59(e), but the court denied his reque st. Mr. Galloway now seeks a COA.
II A COA is a jurisdictional prerequisite to appeal. See Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). A COA will is sue “only if the applicant has made a substantial showing of the deni al of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires that an appli cant show “that jurists of reason would find it debatable whether the petition states a va lid claim of the denial of a constitutional right and that jurists of reason would find it debatable whet her the district cour t was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000).- 4 - Here, no reasonable jurist c ould debate the propriety of the district court’s dismissal. A prisoner may not file a second or succe ssive § 2254 petition without first obtaining an order from the circuit court authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Ab sent such authorization, “[a] district court does not have jurisdiction to address the merits of a second or successive . . . § 2254 claim.” In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam) “When a second or successive § 2254 . . . claim is filed in the district court without the required authorization from th is court, the district court may transfer the matter to this court . . . or it may dismiss the . . . petition fo r lack of jurisdiction.” Id. at 1252. Mr. Galloway’s failure to obtain our au thorization prior to filing his § 2254 petition, which was clearly second or succes sive, compelled the district court to either transfer it to this court in the inte rest of justice or dismiss it for lack of jurisdiction. See id. Finding no basis fo r transfer, the court properly dismissed the petition for lack of jurisdiction. Mr . Galloway’s arguments do not—and cannot— demonstrate the court erred in requiring him to obtain our authorization before filing his second or successive § 2254 petition. Accordingly, we deny a C OA and dismiss this matter.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk