UNITED STATES COURT OF APPEALS TENTH CIRCUIT

GREGORY GIBSON, Petitioner–Appellant,

v. DANNY HORTON, Warden, Respondent–Appellee. No. 09-6177 (D.C. No. 5:08- CV-01082-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and MURPHY , Circuit Judges.

Gregory Gibson, a state prisoner proceed ing pro se, requests a certificate of appealability (“COA”) to appeal the district cour t’s denial of his 28 U.S.C. § 2254 habeas petition. For substantially the same reasons stated by the magistrate judge and adopted by the district court, we deny a COA and dismiss the appeal.
I

* The case is unanimously ordered subm itted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. The court generally disf avors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit March 31, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - In 1988, Gibson was convicted of maimi ng in Oklahoma state court. Gibson did not appeal that conviction and served his one- year sentence for that offense. In 1993, Gibson pled nolo contendre to trafficking in illegal narcotics after two former felony convictions. He is currently incar cerated for this 1993 conviction. After an unsuccessful attempt to obtain st ate postconviction relief, Gibson filed a petition for a writ of habeas co rpus under § 2254 in the Unite d States District Court for the Western District of Oklahoma. The ca se was referred to a magistrate judge, who determined that the district court lacked jurisdiction over Gibson’s petition. Overruling Gibson’s objections, the district cour t adopted the magistrate’s report and recommendation and dismissed the petition.
II Because he did not obtain a COA from the district court, Gibson may not appeal the district court’s dismissal absent a grant of a COA by this court. § 2253(c)(1)(A). To obtain a COA, Gibson must make “a substantia l showing of the deni al of a constitutional right.” § 2253(c)(2). When a district c ourt denies a habeas petition on procedural grounds without reaching the underlying cons titutional claims, a petitioner is not entitled to a COA unless he can show both “that juri sts 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 dist rict court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). An appellate court has discretion to resolve either the procedural or the substantive issue first. Id. at 485. Because Gibson- 3 - proceeds pro se, we liberally construe his application for a COA. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). Federal courts lack jurisdiction to cons ider § 2254 petitions unless the petitioner is in custody pursuant to the cha llenged conviction when the pe tition is filed. Erlandson v. Northglenn Mun. Court , 528 F.3d 785, 788 (10th Ci r. 2008). In his report and recommendation, the magistrate judge foun d that Gibson’s federal habeas petition challenged only his 1988 maiming conviction, an d that Gibson was not in custody based on that conviction when he filed his petition. Gibson did not object to the magistrate’s determination that he was no longer in custody for his maiming conviction. Thus, to the extent his petition sought to challenge his maiming conviction, we are compelled to conclude that the district court lacked jurisdiction to consider the meri ts of his § 22 54 petition. See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991) (“ [F]ailure to make timely obje ctions to the magistrate’s findings or recommendations waives appella te review of both factual and legal questions.”). Gibson arguably objected to the magistrate’s determ ination that he challenged only his maiming conviction. But even if we read his pe tition to challenge any of his other convictions, the district court’s di smissal was proper. Gibson’s 1993 drug trafficking offense is the sole conviction for which he was in custody when he filed this habeas action, and Gibson has already filed two ha beas petitions contesting that conviction. For the district court to exercise jurisdiction over any second or successive habeas petitions, Gibson would have to first seek and receive authorization from this- 4 - court. See In re Cline , 531 F.3d 1249, 1250-51 (10th Cir. 2008). He has not done so. Accordingly, under either construction of Gi bson’s petition, reasonab le jurists could not debate the district court’s conclusion th at it lacked jurisdiction over his case.
III We therefore DENY a COA and DISMISS the appeal. All pending motions before this court are DENIED.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge