UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

TOMMY MAY, Petitioner-Appellant,

v. STATE OF KANSAS; ATTORNEY GENERAL OF KANSAS, Respondents-Appellees. No. 13-3318 (D.C. No. 5:13-CV-03162-SAC) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , GORSUCH , and PHILLIPS , Circuit Judges.

Tommy May, a Kansas prisoner proceedi ng pro se, seeks to appeal two orders of the district court: an order dismissing his 28 U.S.C. § 2254 habeas petition as an unauthorized second or successive applicat ion, and an order denying his motion to alter its findings of fact pursuant to Fed. R. Civ. P. 52(b). We deny a certificate of appealability (COA) and dismiss this appeal.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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

### April 17, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - In 1984, a Kansas jury found Mr. Ma y guilty of two counts of aggravated robbery. After pursuing a numbe r of post-conviction motions in state court, he filed a prior § 2254 petition in 2010, which the di strict court dismis sed as untimely. In 2009, Mr. May filed a motion to correct an illegal sentence in state district court, which was denied. He then pursued an appeal of the denial to the Kansas Court of Appeals. The Kansas Court of Appeals affirmed the denial on July 22, 2011, but in its order it rema nded for correction, nunc pro tunc, of a clerical error in the journal entry of judgment. The Kansas statutes direct that “[w]henever the reco rd is silent as to the manner in which two or more sentences imposed at the sa me time shall be served, they shall be served concu rrently[.]” Kan. Stat. Ann. § 21-6606 (formerly found at Kan. Stat. Ann. § 21-4608(a)). The sentencing judge did not specify whether Mr. May’s sentences on the two counts were to run concurrently or consecutively; hence, the sentences were to be served concurrently. Due to a clerical error, however, the journal entry of judgment in Mr. May’s case stated that his sentences would run consecutively. On remand, the state court entered an amended journal entry of judgment correcting this clerical error. After unsuccessfully pursuing a furthe r state proceeding for post-conviction relief, Mr. May filed this 28 U.S.C. § 2254 petition. The di strict court dismissed his petition for two reasons: it was second-or-successive, and it was time-barred. Mr. May then filed his Fed. R. Civ. P. 52(b) motion. The district court concluded- 3 - that the entry of the amended journal en try of judgment did not make Mr. May’s convictions non-final or reset the date of the state court judgment for either timeliness or second-or-successive purposes. Accordingly, it denied the motion. When the district court denies a hab eas petition on procedural grounds, the petitioner must demonstrate both “that ju rists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and . . . whether the district court wa s correct in its pr ocedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Mr. May fails to satisf y these requirements. Mr. May argues that his § 2254 petition should not have been dismissed as successive and time-barred and that his Rule 52(b) motion should have been granted because “where there is a new judgment in tervening between two habeas petitions, an application challenging the resulting new ju dgment is not second or successive at all.” Aplt. Combined Brie f & Application for COA, at 25 (internal quotation marks and ellipsis omitted) (quoting Magwood v. Patterson , 130 S. Ct. 2788, 2802 (2010)). But he points to no authority holding that the state court’s corre ction of a clerical error represents a “new judgment” fr om which an otherwise untimely and second-or-successive habeas pe tition may be filed. In f act, authorities interpreting Magwood have held to the contrary. United States v. Cano , ___ F. App’x ___, 2014 WL 929053, at *4 n. 6 (11th Cir. Mar. 11, 2014) (“Th e fact that the district court entered an amended judgment to correct clerical errors does not result in a new judgment that is exempt from the rules on second or successive pe titions pursuant to- 4 - 28 U.S.C. § 2255.”); United States v. Ledesma-Cuesta , 476 F. App’x 412, 412 n.2 (3d Cir. 2012) (per curiam) (“[Appellant ] points to no precedential opinion that suggests that the correction of a clerical error serves to e ither restart the limitations period or negate the exis tence of a prior attempt at collateral relief.”); cf. In re
Martin , 398 F. App’x 326, 327 (10th Cir. 201 0) (where amended judgment entered to correct clerical error in nature of charge for which defendant had been convicted, “the amended judgment merely corrected a clerical error—one which did not rise to the level of constitutional error, as [appellant] was fully aware of his offense of conviction”). Mr. May fails to show the district c ourt erred in concluding that his § 2254 petition was an unauthorized second-or-succes sive filing. We therefore deny him a COA and dismiss this appeal. Entered for the Court

ELISABETH A. SHUMAKER, Clerk