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 CERTIFICATE 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 This order is not binding precedent except under the doctrines of law of the case, 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, 1110 (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: 1
2 

habeas application under § 2254. See Hess v. Trammell, 535 F. App’x 765 (10th Cir. 

2013). To commence this case, he recently filed a “Motion to Reopen Case Fed. R. Civ. 

P. 59(e); Rule 60(b) Memorandum 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 application 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 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). Mr. Hess has not 

satisfied this standard. 

A district court lacks jurisdiction over the 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 jurisdiction to consider 

Mr. Hess’s filing because it was a second or successive § 2254 application and this court 

had not authorized it. Reasonable jurists could not debate the correctness of the district 

court’s procedural ruling. 

 

Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 2
3 

Accordingly, we deny Mr. Hess’s application 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