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 This order is not binding precedent except under the doctrines of law of the case, 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 

December 11, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

In Case No. 18-1337, Victor Lopez, a Colorado prisoner proceeding pro se, seeks 

a certificate of appealability (COA) to appeal the district court’s dismissal of his 

28 U.S.C. § 2254 habeas application. In Case No. 18-1338, Lopez seeks a COA to 

appeal the court’s denial of his motion for reconsideration. 

Lopez is currently serving a lengthy prison sentence for his conviction on rape 

charges. Following unsuccessful efforts to challenge his conviction and sentence in the 

state court, he filed a 28 U.S.C. § 2254 federal habeas petition, which was denied. We 

denied a COA. See Lopez v. Trani, 628 F.3d 1228, 1232 (10th Cir. 2010). 

In 2017, Lopez filed a second § 2254 petition in which he argued that the state 

court wrongly enhanced his sentence based on a prior conviction that had been dismissed. 

The district court concluded that the petition was an unauthorized 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 dismissed the filing on procedural grounds—Lopez’s failure to 

obtain authorization from this court to file a second or successive habeas petition—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). 
3 

In Case No. 18-1337, Lopez fails to address the grounds for the district court’s 

dismissal—that the court lacked jurisdiction to consider the application because it was 

subject to the restrictions on second or successive § 2254 applications. Instead, Lopez 

focuses on the merits of his claims, which we need not address because we can dispose of 

this matter based on the procedural ruling. See Slack, 529 U.S. at 485. Because no 

reasonable jurist could debate the court’s procedural decision, we deny a COA.1

 

Case No. 18-1338 

As to Case No. 18-1338, the district court construed Lopez’s motion for 

reconsideration as a true Rule 59(e) motion because it did not in substance or effect assert 

or reassert a federal basis for relief from the petitioner’s underlying 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 Cir. 2006). A COA may issue “if the 

applicant has made a substantial showing of the denial of a constitutional right.” 

§ 2253(c)(2). 

Grounds for relief under Rule 59(e) “include (1) an intervening change in the 

controlling law, (2) new evidence previously unavailable, and (3) the need to correct 

clear error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 

 1

 The district court dismissed Lopez’s § 2254 application on the alternative ground 

that he was no longer in custody pursuant to the judgment he says 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 procedural decision that the application was second or 

successive. 
4 

1005, 1012 (10th Cir. 2000). Here, the district court determined that Lopez failed to meet 

this test; rather, the motion repeated arguments the court previously considered and 

rejected. 

“In cases like this one, where the decision appealed from involves a procedural 

ruling of the district court, a COA may only issue if the prisoner 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 and that jurists of reason would find it debatable whether 

the district court was correct in its procedural ruling.” Spitznas, 464 F.3d at 1225 

(internal quotation marks omitted). Because no reasonable jurist 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 argument 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