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 CERTIFICATE OF APPEALABILITY*

_________________________________ 

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

_________________________________ 

Walter Payton, proceeding pro se, seeks a certificate of appealability (COA) to 

appeal from the district court’s order dismissing his fourth 28 U.S.C. § 2254 habeas 

application for lack of jurisdiction as an unauthorized successive 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 dismissed 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 This order is not binding precedent except under the doctrines of law of the case, 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: 1
2 

additional § 2254 applications, which the district court dismissed 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 jurisdiction. Mr. Payton now seeks a COA to 

appeal from the district court’s dismissal order. 

To obtain a COA where, as here, a district court has dismissed a filing on 

procedural grounds, Mr. Payton must 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). We need not 

address the constitutional question if we conclude that reasonable jurists would not 

debate the district court’s resolution of the procedural one. Id. at 485. 

 A state prisoner, like Mr. Payton, may not 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 jurisdiction to address the merits of a second or 

successive § 2254 habeas application. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). 

Mr. Payton does not dispute that he previously filed a § 2254 application 

challenging the same convictions. The district court’s dismissal of that application as 

time-barred constitutes a merits decision, and “any later habeas petition challenging the 

same conviction[s] is second or successive and is subject to the [Antiterrorism and 

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Effective Death Penalty Act of 1996 (AEDPA)] requirements.” In re Rains, 659 F.3d 

1274, 1275 (10th Cir. 2011). Under AEDPA, Mr. Payton must receive authorization 

from this court before he may proceed with his successive § 2254 habeas application, 

see § 2244(b)(3)(A), but he does not contend that 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 requisite 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. Accordingly, 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