UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ VICTOR LOPEZ, Petitioner - Appellant,

v. STERLING CORRECTIONAL FACILITY; CYNTHIA COFFMAN, the Attorney General of the State of Colorado, Respondents - Appellees.

––––––––––––––––––– –––––––––––––––– VICTOR LOPEZ, Petitioner - Appellant,

v. STERLING CORRECTIONAL FACILITY; CYNTHIA COFFMAN, the Attorney General of the State of Colorado, Respondents - Appellees. No. 18-1337 (D.C. No. 1:17- CV-03121-LTB) (D. Colo.)

No. 18-1338 (D.C. No. 1:17- CV-03120-LTB) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY 

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

________________ _________________

 This order is not binding prec edent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, 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 

### December 11, 2018
Elisabeth A. Shumaker Clerk of Court2 In Case No. 18-1337, Victor Lopez , a Colorado prisoner proceedi ng pro se, seeks a certificate of appealability (COA ) to appeal the district cou rt’s dismissal of his 28 U.S.C. § 2254 habeas applicat ion. In Case No . 18-1338, Lope z seeks a COA to appeal the court’s denial of his motion for reconsideration. Lopez is currently serving a leng thy prison sentence for his co nviction on rape charges. Following unsuccessf ul efforts to challenge his convi ction and sentence in the state court, he filed a 28 U.S. C. § 2254 federal habeas petitio n, which was denied. We denied a COA. See Lopez v. Trani , 628 F.3d 1228, 1232 (10th Cir. 2 010). In 2017, Lopez filed a second § 2254 petition in which he argue d that the state court wrongly enhanced his sente nce based on a prior conviction that had been dismissed. The district court concluded th at the petition was an unauthori zed second or successive § 2254 petition over which it lacked jurisdiction. See In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam); see also 28 U.S.C. § 2244(b)(3)(A ). The court also denied Lopez’s motion to reconsider.
Case No. 18-1337 To appeal, Lopez must obtain a COA. See 28 U.S.C. § 2253(c)(1)(A). Where, as here, a district court has dismis sed the filing on procedural g rounds—Lopez’s failure to obtain authorization from this c ourt to file a second or succes sive habeas petition—to obtain a COA he must show both “that jurists of reason would fi nd it debatable whether the petition states a valid cla im of the denial of a constituti onal right and that jurists of reason would find it debatable wh ether the district court was c orrect in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000).3 In Case No. 18-1337, Lopez fails t o address the grounds for the district court’s dismissal—that the court lacked j urisdiction to consider the ap plication because it was subject to the restrictions on second or successive § 2254 appl ications. Instead, Lopez focuses on the merits of his cla ims, which we need not address because we can dispose of this matter based on t he procedural ruling. See Slack , 529 U.S. at 485. Because no reasonable jurist could debate t he court’s procedural decision, we deny a COA. 1
Case No. 18-1338 As to Case No. 18-1338, the distr ict court construed Lopez’s mo tion for reconsideration as a true Rule 5 9(e) motion because it did not in substance or effect assert or reassert a federal basis fo r relief from the petitioner’s un derlying conviction. See Gonzales v. Crosby , 545 U.S. 524, 532, 533, 538 (2005); see also United States v. Pedraza , 466 F.3d 932, 933 ( 10th Cir. 2006). Still, Lopez must obtain a COA to appeal. See Spitznas v. Boone , 464 F.3d 1213, 1225 (10th Ci r. 2006). A COA may issue “if th e applicant has made a substantial showing of the denial of a con stitutional right.” § 2253(c)(2). Grounds for relief under Rule 59 (e) “include (1) an intervening change in the controlling law, (2) new evidence previously una vailable, and ( 3) the need to correct clear error or prevent m anifest injustice.” Servants of the Paraclete v. Does , 204 F.3d

1 The district court dismissed L opez’s § 2254 application on the alternative ground that he was no longer in custody p ursuant to the judgment he sa ys was wrongly used to enhance his sentence. We do not reach the not-in-custody issue because no reasonable jurist could debate the court’s pr ocedural decision that the ap plication was second or successive.4 1005, 1012 (10th Cir. 2000). Here , the district court determin ed that Lopez failed to meet this test; rather, the motion re peated arguments the court prev iously considered and rejected. “In cases like this one, where the decision appealed from invol ves a procedural ruling of the district court, a COA may only issue if the priso ner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right a nd that jurists of reason wou ld find it debatable whether the district court was correct in its procedural ruling.” Spitznas , 464 F.3d at 1225 (internal quotation marks omitte d). Because no reasonable juri st could debate the court’s procedural decision, we deny a COA.
Conclusion We deny COAs in Case Nos. 18-1337 and 18-1338 and dismiss these matters. We deny Lopez’s motions to proceed in forma pauperis on appeal because he has failed to demonstrate “the existence of a reasoned, nonfrivolous argum ent on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991).

Entered for the Court

ELISABETH A. SHUMAKER, Clerk