UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

TIMOTHY H. JOHNSON, Petitioner - Appellant,

v. R.C. SMITH, Warden,
Re spondent - Appellee. No. 16-2119 (D.C. No. 2:16-CV-00130-WJ-WPL) (D. N.M.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , O’BRIEN , and MORITZ , Circuit Judges.
Timothy H. Johnson, a state prisoner pr oceeding pro se, seek s 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 jurisdiction. He has al so filed a motion to proceed on appeal without prepayment of costs or fees. We deny a COA and dismiss the

matter. In December 2002, Mr. Johnson was convict ed in New Mexico state court of first degree murder and tampering with evid ence. He was senten ced to thirty years for the murder count and eighteen months fo r the other count, with the sentences to

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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

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Elisabeth A. Shumaker Clerk of Court- 2 - be served consecutively. The New Mexico Supreme Court affirmed his conviction. He sought state post- conviction relief, wh ich was denied. In July 2006, he filed a § 2254 habeas petition in federal c ourt. The district court denied habeas relief and Mr. Johnson did not appeal from that decision. In February 2016, Mr. Johnson filed a second § 2254 habeas petition. The district court determined that it was an unauthorized seco nd or successive petition and dismissed it for lack of jurisdiction. Mr. Johnson now seeks a COA to appeal that dismissal. We first address the timeliness of Mr. Johnson’s notice of appeal. His notice of appeal was due on May 23, 2016, but it was not filed in this court until May 31, 2016. In response to our motion to show cause why his appeal should not be dismissed for lack of juri sdiction because it was not timely filed, Mr. Johnson submitted a declaration pursuant to 28 U.S.C. § 1746. In that decl aration, he states, under penalty of perjury, th at he deposited his notice of appeal into the institutional mailbox with first class pos tage pre-paid on May 23, 2016. Mr. Johnson has therefore established the time ly filing of his notice of a ppeal by virtue of the prison mailbox rule. See Price v. Philpot , 420 F.3d 1158, 1166 (10t h Cir. 2005) (explaining that a prisoner can establish timely filing under the mailbox rule by “timely use of the prison’s regular mail system in combination with . . . a d eclaration under penalty of perjury of the date on which the documen ts were given to prison authorities and attesting that postage was prepaid”).- 3 - To obtain a COA, Mr. Johnson must s how both that “juris ts 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 § 22 54 petition unless he first obtains an order from the circ uit court authorizing the dist rict court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). In the absence of such authorization, a district court lacks jurisdicti on to address the merits of a second or successive § 2254 petition. See In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). Mr. Johnson’s first § 22 54 petition was denied on th e merits. Once a § 2254 petition is denied on the meri ts, “any later habeas peti tion challenging the same conviction is second or successi ve and is subject to the [a uthorization] requirements.”
In re Rains , 659 F.3d 1274, 1275 (10th Cir. 2011). Mr. Johnson’s second § 2254 petition challenged the same convictions as his first § 2254 petiti on, and he did not receive authorization from this court to file that petition. The district court therefore properly determined that it lacked jurisdiction to reach the merits of Mr. Johnson’s second § 2254 petition because he had not r eceived authorization to file it. In his COA application, Mr. Johnson does not address the district court’s dismissal for lack of jurisdiction. Instead, he argues the merits of the claims he seeks to raise in his second § 2254 petition. Under these circum stances, reasonable jurists- 4 - could not debate that the di strict court was correct to treat Mr. Johnson’s new § 2254 petition as an unauthorized second or su ccessive § 2254 petition and dismiss it for lack of jurisdiction. Accordingly, we deny a COA and dismis s this matter. Mr. Johnson’s request to proceed on appeal without prepayment of costs or fees is denied as moot. The releva nt statute, 28 U.S.C. § 1915( a), does not permit litigants to avoid payment of fili ng and docketing fees, only prepayment of those fees. Since we have reached the merits of this matter, prepayment of fe es is no longer an issue. Though we have disposed of this matter on the merits, Mr. Johnson remains obligated to pay all filing and docketing fees. He is directed to pay the fees in full ($505) to the Clerk
of the District Court for the District of New Mexico.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk