UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

ANTHONY LEROY DAVIS, Petitioner - Appellant,

v. SAM BROWNBACK, Governor; DEREK SCHMIDT, Atto rney General of the State of Kansas, Respondents - Appellees. No. 16-3010 (D.C. No. 5:14-CV-03144-SAC-DJW) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before BRISCOE , LUCERO , and BACHARACH , Circuit Judges.
Petitioner Anthony Leroy Da vis seeks a certificate of appealability (COA) to appeal from a district court order dismissing, for various procedural reasons, all of the claims he asserted in the underlying ha beas action. Becaus e we conclude that “jurists of reason would [ not ] find it debatable whether the district court was correct in its procedural ruling,” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (stating standard governing COA in cas es involving procedural ru lings), we deny a COA and dismiss this appeal.

* This order is not binding precedent ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### May 9, 2016
Elisabeth A. Shumaker Clerk of Court- 2 - In 1989, Davis was convicted by a Kansas jury of first-degree felony murder, aggravated robbery, and aggravated arson. See State v. Davis , 802 P.2d 541 (Kan. 1990) (affirming conviction). After un successfully seeking habeas relief with respect to his 1989 convictions on prior occas ions, he filed the instant petition once again challenging them under 28 U.S.C. § 2254. He also asserted claims focused on other matters, such as actions taken by the state parole board, prison officials’ calculation of the expiration date of hi s sentence, and the conditions at his correctional facility. The magistrate judge screened the petition and issued Davis an order to show cause why the matter should not be dismissed because (1) the § 2254 claims were second or successive and ha d not been authorized by this court under 28 U.S.C. § 2244(b)(3); (2) th e claims regarding the paro le board and the calculation of the expiration date of his sentence (a ) involved the execution of his sentence and thus were not properly br ought under § 2254 and (b) were not, in any event, supported by adequately stated factual and legal bases; a nd (3) the claims regarding conditions at Davis’ prison had to be brought in an action under 42 U.S.C. § 1983 rather than a habeas proceeding. Davis responded with severa l filings that failed to me aningfully address any of the above deficiencies. The district court dismissed the action, adopting the magistrate judge’s analys is of Davis’ claims. 1 After the district court disposed of

1 In a motion to amend filed in respons e to the show-cause order Davis seems to have been attempting to drop the non-§ 2254 claims while addi ng some allegations (continued)- 3 - several post-judgment filings, Davis filed a notice of appeal followed by a combined opening brief and motion for a COA. Davis purports to raise three issues fo r appeal, though his terse and cryptic briefing obscures the thrust of his argument. We have endeavored to construe his brief liberally while not manuf acturing arguments for him. See Walters v. Wal-Mart Stores, Inc. , 703 F.3d 1167, 1173 (10th Cir. 2013). His first issue, directed at the district court’s determ ination that his second or successive habeas clai ms were subject to dismissal fo r lack of authorization under § 2244(b)(3), states that “his 28 U.S. C. [§] 2254 Amended-Petition completely supersedes the or[i]ginal petition” and that § 2254 is a bill of attainder because it deprives him of his liberty and property w ithout due process and without a trial. Aplt. Br. at 3 (internal quotation marks omi tted). While the thrust of the second point seems fairly clear (and patently frivol ous), it is not clear what Davis means by his amended petition superseding an original petition. He may be contending the amendment he tried to make in response to the show cause order superseded the original petition in this case, or he may be contending the petition in this case

to an unauthorized § 2254 claim alleging pr osecutorial use of false testimony. The district court denied the motion as futile , because the amendment did not cure the deficiencies noted by the magi strate judge. Davis does not argue on appeal that the district court should have granted a voluntary dismissa l of his non-§ 2254 claims (rather, he appears to argue they should not have been di smissed). In any event, given that the district court dismissed al l claims without prej udice, whether it should have considered and grante d voluntary dismissal of the non-§ 2254 claims is immaterial.- 4 - superseded an earlier petition and somehow thereby became non-successive. Neither contention has any debatable me rit. As to the former, ev en overlooking the fact that the district court denied the amendmen t, it would have had no effect on the disposition of the petition because it did not cure the operativ e lack of authorization. As to the latter contention, a second or su ccessive petition does not supersede a prior non-successive petition for purposes of § 2244(b)(3)—if it did, each new habeas petition would supersede those that came before and ther eby evade the authorization requirement, rendering the st atute meaningless. Davis’ second issue concerns his claim that the expiration date of his sentence has not been calculated corr ectly under Kan. Stat. Ann. § 21-4608(g), a now-repealed statute that specified, for cr imes committed before July 1, 1993, the manner in which consecutive definite and indefinite terms were to be combin ed for service by a prisoner. He asserts that a violation of this statute is correctable at any time. Whether or not that is an accurate statemen t of Kansas law (the only authority cited for it is an Illinois decisi on), it does not undercut the district court’s reason for dismissing the claim in this § 2254 proceeding. The district court held th at the claim challenged the execution of Davis’ senten ce and thus must be brought under 28 U.S.C. § 2241. The distri ct court refused to consider the claim in this case, because it deemed Davis’ us e of a § 2254 proceeding as a catch-all to include § 2241 and civil rights claims to be an improper at tempt to avoid properly filing and paying for three distinct cases. Davis does not challenge that determ ination on appeal, and- 5 - he expressly acknowledges that his § 21-4608 claim “attacks . . . the execution of his sentences.” Aplt. Br. at 4 (interna l quotation marks omitted). Under the circumstances, Davis has not ra ised a debatable basis for re versing the district court’s dismissal of the claim. 2 Davis’ final issue on appeal consists of three statements. Th e first is that he was deprived of his due process rights under Brady v. Maryland , 373 U.S. 83 (1963). But any Brady claim would fall unde r § 2254 and thus have been properly dismissed for lack of authorization. The second stat ement suggests he was denied a transcript contrary to Britt v. North Carolina , 404 U.S. 226 (1971), which addressed when states must provide free transcripts for indi gent defendants. This claim would also involve an attack on the state criminal pr oceedings under § 2254 and hence have been subject to dismissal for lack of authorization. The last st atement is that Davis made a showing of actual innocence allowing him to avoid the time bar in § 2244(d) under McQuiggin v. Perkins , ___ U.S. ___, 133 S. Ct . 1924 (2013). But that is irrelevant to the fatal deficiency in his second or succe ssive habeas claims, which was lack of authorization by this court under § 2244(b)(3), not untimeliness. If the actual-innocence doctrine is relevant at all, it would be as part of a challenge to the district court’s discretiona ry decision to dismiss the habeas claims rather than transfer th em to this court for po ssible authorization. See In re Cline ,
2 We note that if the claim were somehow construed as relating to the imposition rather than execution of sentence, it would be a § 2254 claim subject, like Davis’ other § 2254 claims, to dismissal for l ack of authorization un der § 2244(b)(3).- 6 - 531 F.3d 1249, 1251 (10th Cir. 2008) (noting factors releva nt to decision whether to dismiss or transfer successive claim include whether it w ould be time-barred). But Davis makes no challenge to that aspect of th e district court’s order. Nor would such a challenge succeed in any event. We have repeatedly held that when “a party is aware or should be aware th at [his] unauthorized second or successive motion cannot be heard in the district cour t, transfer may be denied on the basis that the filing was not made in good faith.” United States v. Johnson , ___ F. App’x ___, 2016 WL 1381247, at *2 (10th Cir. Apr. 7, 2016) (internal quot ation marks omitted) (citing cases). Davis, who has already had a pr ior second or successive habeas petition dismissed for lack of author ization, is clearly subject to this principle here. See id. Accordingly, we deny a COA and dismis s the appeal. We grant Davis’ motion to proceed in forma pauperis on appeal.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk