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 proceeding pro se, requests a certificate of 

appealability (“COA”) to appeal the district court’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 submitted 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 doctrines of law of the case, res judicata, and 

collateral estoppel. The court generally disfavors 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 maiming 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 incarcerated for this 1993 conviction. 

After an unsuccessful attempt to obtain state postconviction relief, Gibson filed a 

petition for a writ of habeas corpus under § 2254 in the United States District Court for 

the Western District of Oklahoma. The case was referred to a magistrate judge, who 

determined that the district court lacked jurisdiction over Gibson’s petition. Overruling 

Gibson’s objections, the district court 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 substantial showing of the denial of a constitutional 

right.” § 2253(c)(2). When a district court denies a habeas petition on procedural 

grounds without reaching the underlying constitutional claims, a petitioner is not entitled 

to a COA unless he can show both “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). 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 consider § 2254 petitions unless the petitioner is 

in custody pursuant to the challenged conviction when the petition is filed. Erlandson v. 

Northglenn Mun. Court, 528 F.3d 785, 788 (10th Cir. 2008). In his report and 

recommendation, the magistrate judge found that Gibson’s federal habeas petition 

challenged only his 1988 maiming conviction, and 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 merits of his § 2254 petition. See Moore v. United States, 950 

F.2d 656, 659 (10th Cir. 1991) (“[F]ailure to make timely objections to the magistrate’s 

findings or recommendations waives appellate review of both factual and legal 

questions.”). 

 Gibson arguably objected to the magistrate’s determination that he challenged 

only his maiming conviction. But even if we read his petition to challenge any of his 

other convictions, the district court’s dismissal 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 habeas 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 Gibson’s petition, reasonable jurists could not 

debate the district court’s conclusion that 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