UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

FAYVUN MANNING, Petitioner-Appellant,

v. STATE OF KANSAS, Respondent-Appellee. No. 13-3168 (D.C. No. 5:13-CV-03071-SAC) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before BRISCOE , Chief Judge, HARTZ and MATHESON , Circuit Judges.
Fayvun Manning, a state prisoner proceed ing pro se, seeks a certificate of appealability (COA) to appeal the district court’s dismi ssal of his second 28 U.S.C. § 2254 habeas petition for lack of jurisd iction. We deny a COA and dismiss the

matter. Mr. Manning was convicted of aggrav ated robbery and first-degree felony murder. The Kansas Supreme Court affirm ed his conviction on direct appeal in 2001. Mr. Manning sought pos t-conviction relief in state court, but it was denied.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### September 5, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - In March 2006, Mr. Manning filed hi s first § 2254 habeas petition challenging his convictions. The district court di smissed the petition with prejudice as time-barred because it was filed outside of the one-year statute of limitations. Mr. Manning did not seek to appeal that decision. In March 2013, Mr. Manning filed a second § 2254 habeas petition. The district court determined th at this petition was an unaut horized second or successive petition and dismissed it for lack of jurisd iction. Mr. Manning now seeks a COA to appeal that dismissal. To obtain a COA, Mr. Manning must show 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 re ason would find it debatable wh ether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). A prisoner may not file a second or successive § 22 54 habeas petition unless he first obtains an order from the circu it court authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). In the absence of such authorization, a district cour t lacks jurisdiction to address the merits of a second or successive § 2254 ha beas petition. See In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). Mr. Manning’s new § 2254 habeas pet ition asserts that (1) the charging document was jurisdictionally de fective in that it lacked essential elements of the offense; (2) the jury instructions differed from the ch arge in the complaint; (3) trial- 3 - counsel was ineffective; and (4) the St ate erred in summarily dismissing his post-conviction motion and not excusing his failure to prev iously raise his claims. Mr. Manning’s first § 2254 habeas petiti on brought claims at tacking the same conviction that he now seeks to challenge in his second § 2254 habeas petition. Even though his first § 2254 habeas petition was dismissed as time-barred, that determination still counts as “a decision on the merits, a nd any later habeas petition challenging the same conviction is second or successive and is subject to the AEDPA requirements.” In re Rains , 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam). The district court therefore properly characterized Mr. Manning’s new petition as a second or successive § 22 54 habeas petition. Reasonable jurists could not debate that the district court was correct to treat Mr. Manning’s new petition as an unauthorized second or successive § 2254 habeas petition and to dismiss it for lack of juri sdiction. Accordingl y, we deny a COA and dismiss this matter. We grant Mr. Manning’s motion for leave to proceed on appeal without prepayment of costs or fees. Entered for the Court

ELISABETH A. SHUMAKER, Clerk