UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ WALTER PAYTON, Plaintiff - Appellant,

v. STATE OF KANSAS, Defendant - Appellee. No. 23-3228 (D.C. No. 5:23- CV-03237-JWL) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HOLMES , Chief Judge, KELLY and MATHESON , Circuit Judges.

________________ _________________ Walter Payton, proceeding pr o se, seeks a certificate of appealability (COA) to appeal from the district court’s order dism issing his fourth 28 U.S.C. § 2254 habeas application for lack of jurisdic tion as an unauthorized successi ve application. We deny a COA and dismiss this matter. In 1998, Mr. Payton was convicted of three counts of rape in Kansas state court. He was sentenced to 712 months in prison. In 2003, he filed his first § 2254 habeas application, which the district court dismisse d as time-barred. After that he filed two

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### January 30, 2024
Jane K. Castro Chief Deputy Clerk Appellate Case: 23-3228 Document: 010110992041 Date Filed: 01/30/2024 Page: 12 additional § 2254 applica tions, which the district court di smissed as unauthorized second or successive applications. In 2023, Mr. Payton filed his fourth § 2254 habeas application. Because he did not receive authorization from this court to file a successive § 2254 habeas application, the district court dismissed it for lack of ju risdiction. Mr. Payton now seeks a COA to appeal from the district court’s dismissal order. To obtain a COA where, as here, a di strict court has dismissed a filing on procedural grounds, Mr. Payton must show both “that jurists of reason would find it debatable whether the petition st ates a valid claim of the denial of a constitutional right and that jurists of reason woul d find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 ( 2000). We need not address the constitutional question if we c onclude that reasonabl e jurists would not debate the district court’s reso lution of the procedural one. Id. at 485. A state prisoner, like Mr. Payton, may no t file a second or successive § 2254 habeas application unless he first obtains an order from the circuit court authorizing the district court to consider the motion. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a district court lacks jurisdic tion to address the merits of a second or successive § 2254 hab eas application. In re Cline , 531 F.3d 1249, 1 251 (10th Cir. 2008). Mr. Payton does not dispute that he pr eviously filed a § 2254 application challenging the same convictions . The district court’s dismi ssal of that application as time-barred constitutes a merits decision, a nd “any later habeas pe tition challenging the same conviction[s] is second or successive and is subject to the [Antiterrorism and Appellate Case: 23-3228 Document: 010110992041 Date Filed: 01/30/2024 Page: 23 Effective Death Penalty Act of 1996 (AEDPA)] requirements.” In re Rains , 659 F.3d 1274, 1275 (10th Cir. 2011). Under AEDPA, Mr. Payton must r eceive authorization from this court before he may proceed with his successive § 2254 habeas application,

see § 2244(b)(3)(A), but he does not contend th at this court granted him the requisite authorization. In his COA application, he does not address the reasoning in the district court’s dismissal order, but instead raises arguments challenging the validity of his state-court convictions. Because Mr. Payton did not receive the requi site circuit-court authorization before filing his fourth § 2254 habeas application, he has failed to show that jurists of reason would debate the correctness of the district court’s procedural ruling dismissing his application for lack of jurisdiction. Acco rdingly, we deny a COA and dismiss this
matter.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk Appellate Case: 23-3228 Document: 010110992041 Date Filed: 01/30/2024 Page: 3