UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

PETER E. GOMEZ, 

 Petitioner-Appellant, 

v. 

JOHN DAVIS, B.V.M.C.; ROGER 

WERHOLTZ, Interim Executive Director 

DOC*

; JOHN SUTHERS, Attorney 

General of the State of Colorado, 

 Respondents-Appellees. 

No. 13-1004 

(D.C. No. 1:12-CV-03008-LTB) 

(D. Colo.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY 

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS**

 

Before HARTZ, GORSUCH, and MATHESON, Circuit Judges. 

 

 Peter E. Gomez, proceeding pro se, seeks a certificate of appealability (COA) 

to appeal the district court’s dismissal of his unauthorized second or successive 

28 U.S.C. § 2254 application for a writ of habeas corpus. We deny a COA an 

dismiss the matter. 

 

*

 Pursuant to Fed. R. App. P. 43(c)(2), Roger Werholtz, Interim Executive 

Director DOC, is substituted for Tom Clements, Executive Director DOC, as a 

Respondent-Appellee in this action. 

** This order is not binding precedent except under the doctrines of law of the 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

April 29, 2013

Elisabeth A. Shumaker 

Clerk of Court
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 In 2002, Mr. Gomez pleaded guilty in Colorado state court to (1) possession 

with intent to distribute a controlled substance and (2) possession of a controlled 

substance. He was sentenced to twenty-four and six years’ imprisonment, 

respectively, with the sentences to run consecutively. 

 In 2009, Mr. Gomez filed in state court a motion for expungement of court 

costs due to his indigency. On February 20, 2009, the state trial court entered a 

minute order vacating court costs related to Mr. Gomez’s controlled substance 

convictions. Aplt.’s Combined Opening Br. & Appl. for COA, Ex. A at 1-2. 

 In 2011, Mr. Gomez filed his first § 2254 application, asserting that the state 

trial court erred in imposing consecutive sentences for his controlled substance 

convictions. The district court denied the application as time-barred. 

 In 2012, Mr. Gomez filed a second § 2254 application. It challenged the same 

Colorado convictions and sentences as his first § 2254 application. This time he took 

issue not only with his consecutive sentences, but also with his plea agreement. The 

district court decided this filing was an unauthorized second or successive § 2254 

application. See 28 U.S.C. § 2244(b). Declining to transfer it to this court, the 

district court dismissed it for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1252 

(10th Cir. 2008) (per curiam) (stating that, when a district court is presented with an 

unauthorized second or successive § 2254 claim, it “may transfer the matter to this court 

if it determines it is in the interest of justice to do so under [28 U.S.C.] § 1631, or it may 

dismiss the motion . . . for lack of jurisdiction”). 
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 Mr. Gomez now seeks a COA to appeal from the district court’s dismissal. 

When, as here, a district court dismisses a habeas application on procedural grounds, 

a petitioner is entitled to a COA only if he shows both that reasonable jurists would 

find it debatable whether he had stated a valid constitutional claim and debatable 

whether the district court’s procedural ruling was correct. Slack v. McDaniel, 

529 U.S. 473, 484 (2000). 

 We construe Mr. Gomez’s pro se filings liberally. Sigala v. Bravo, 656 F.3d 

1125, 1126 (10th Cir. 2011). As best we can discern, he argues that the state trial 

court’s February 20, 2009, minute order waiving court costs qualifies as a new 

judgment under the Supreme Court’s holding in Magwood v. Patterson, 130 S. Ct. 

2788 (2010), so the § 2254 application he filed in 2012 was not a second or 

successive application. Mr. Gomez’s argument is misplaced. 

 In Magwood, the Supreme Court held that when “there is a ‘new judgment 

intervening between the two habeas [applications],’ an application challenging the 

resulting new judgment is not ‘second or successive’ at all.” 130 S. Ct. at 2802 

(citation omitted). In reaching this determination, the Court addressed the meaning 

of “second or successive” in § 2244(b), concluding that the use of the term 

“judgment” in § 2254(b) was “significant” and “that the phrase ‘second or 

successive’ must be interpreted with respect to the judgment challenged.” Id.

at 2797. 
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 In this case, the state trial court’s 2009 minute order vacating court costs is not 

a new judgment entered between Mr. Gomez’s 2011 and 2012 applications for § 2254 

relief. Despite Mr. Gomez’s statements to the contrary, the § 2254 application he 

filed in 2012 challenges the same judgment that he challenged in his 2011 application 

for § 2254 relief: the judgment entered after he pleaded guilty in 2002 to two 

controlled substance violations. 

 Mr. Gomez also argues that the district court should not have found the § 2254 

application he filed in 2012 to be second or successive because the district court did 

not adjudicate the merits of his first application, but instead dismissed it as 

time-barred. Mr. Gomez is mistaken. “The dismissal of [his] first habeas petition as 

time-barred was a decision on the merits, and any later habeas petition challenging 

the same conviction is a second or successive subject to the AEDPA requirements.” 

In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam). 

 Because reasonable jurists could not debate that the district court was correct 

in its procedural ruling—to treat Mr. Gomez’s § 2254 claims as an unauthorized 

second or successive § 2254 application and to dismiss it for lack of jurisdiction—we 

deny a COA and dismiss this matter. We also deny Mr. Gomez’s motion for leave to 

proceed on appeal without prepayment of costs or fees because he has failed to 

advance “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 
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(10th Cir. 1991). Mr. Gomez is therefore directed to pay the full amount of the filing 

fee forthwith. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk