UNITED STATES COURT 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 proceeding pro se, seeks a certificate of 

appealability (COA) to appeal the district court’s dismissal of his second 28 U.S.C. 

§ 2254 habeas petition for lack of jurisdiction. We deny a COA and dismiss the 

matter. 

 Mr. Manning was convicted of aggravated robbery and first-degree felony 

murder. The Kansas Supreme Court affirmed his conviction on direct appeal in 

2001. Mr. Manning sought post-conviction relief in state court, but it was denied. 

 

* This order is not binding precedent except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 5, 2013

Elisabeth A. Shumaker 

Clerk of Court
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 In March 2006, Mr. Manning filed his first § 2254 habeas petition challenging 

his convictions. The district court dismissed 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 that this petition was an unauthorized second or successive 

petition and dismissed it for lack of jurisdiction. 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 reason would find it debatable whether 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 § 2254 habeas petition unless 

he first obtains an order from the circuit 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 court lacks jurisdiction to address the merits of a second or 

successive § 2254 habeas petition. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 

2008) (per curiam). 

 Mr. Manning’s new § 2254 habeas petition asserts that (1) the charging 

document was jurisdictionally defective in that it lacked essential elements of the 

offense; (2) the jury instructions differed from the charge in the complaint; (3) trial 
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counsel was ineffective; and (4) the State erred in summarily dismissing his 

post-conviction motion and not excusing his failure to previously raise his claims. 

 Mr. Manning’s first § 2254 habeas petition brought claims attacking 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, and 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 § 2254 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 jurisdiction. Accordingly, 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