UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ DARYL A. HESS, Petitioner - Appellant,

v. CHRISTE QUICK, Warden, Respondent - Appellee. No. 24-5064 (D.C. No. 4:10-CV -00517-CVE-FHM) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before McHUGH , EBEL , and KELLY , Circuit Judges.

________________ _________________ Daryl A. Hess, an Oklahoma prisoner proceeding pro se, 1 seeks a certificate of appealability (COA) to appeal from the district court’s determination that his recent filing was an unauthorized second or successive 28 U.S.C. § 2254 habeas application that it lacked jurisdiction to consider. We deny a COA and dismiss this matter. An Oklahoma jury found Mr. Hess guilty of robbery with a dangerous weapon after his former conviction of two or more felonies. After the Oklahoma Court of Criminal Appeals affirmed his conviction, Mr. Hess unsuccessfully pursued a federal

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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

1 Because Mr. Hess represents himself, we construe his filings liberally. See Hall v. Bellmon , 935 F.2d 1106, 1 110 (10th Cir. 1991). FILED United States Court of Appeals Tenth Circuit 

### September 12, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 12 habeas application under § 2254. See Hess v. Trammell , 535 F. App’x 765 (10th Cir. 2013). To commence this case, he recently filed a “Mo tion to Reopen Case Fed. R. Civ. P. 59(e); Rule 60(b) Memorand um and/or Motion to Relate back to Original Petition.” R. at 169. The district court determined that Mr. Hess’s filing was an unauthorized second or successive § 2254 ap plication and dismissed it. He now seeks to appeal the dismissal. To appeal, Mr. Hess must first obtain a COA. See 28 U.S.C. § 2253(c)(1)(A). And to obtain a COA, he must show both “that jurists of reason would find it debatable whether the petition states a valid claim of th e denial of a constitutional right and that jurists of reason would find it debatable whet her the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Mr. Hess has not satisfied this standard. A district court lacks jurisdiction over th e merits of an unauthorized second or successive § 2254 application. See In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). The district court determined that it lacked juri sdiction to consider Mr. Hess’s filing because it was a second or su ccessive § 2254 applica tion and this court had not authorized it. Reasonable jurists coul d not debate the correctness of the district court’s procedural ruling. Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 23 Accordingly, we deny Mr. Hess’s applicati on for a COA and dismiss this matter. We deny as moot Mr. Hess’s Motion to Withdraw Appeal Without Prejudice.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 3