UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

CHARLES MEDICINE BLANKET, Petitioner-Appellant,

v. MICHAEL MILLER, Warden, C.C.C.F.; JOHN W. SUTHERS, The Attorney General of the State of Colorado, Respondents-Appellees. No. 14-1005 (D.C. No. 1:13-CV-01795-LTB) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before TYMKOVICH , O’BRIEN , and PHILLIPS , Circuit Judges.
Charles Medicine Blanket, a state pris oner proceeding pro se, seeks to appeal the district court’s dismissal of his motion under 28 U.S.C. § 2254 for lack of jurisdiction after construi ng it as an unauthorized se cond or successive habeas application. We deny a certificate of appealability (COA) and dismiss this proceeding. Medicine Blanket was convicted in Colorado state court of multiple counts related to sexual assault on a child. He was sentenced in October 1998 to 55 years’

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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

### June 16, 2014 Elisabeth A. Shumaker Clerk of Court- 2 - imprisonment. The judgment was affirm ed on direct appeal, and the Colorado Supreme Court denied certiorari. Medicine Blanket filed a § 2254 habeas application in December 2000. The district court dismissed th at application without prej udice based on his failure to exhaust state remedies. See Medicine Blanket v. Watkins , 44 F. App’x 350, 350 (10th Cir. 2002). He file d another § 2254 application, which the district court dismissed in October 2001, ag ain for failure to exhaust st ate remedies. This court denied a COA. Id. at 350-51. In December 2008, Medicine Blanket file d a new § 2254 habeas application. The district court concluded that the claims in that application we re not exhausted. But because Medicine Blanket could no longer pursue them in state court, it held that the claims were procedurally defaulte d and dismissed them with prejudice. See Medicine Blanket v. Brill , 425 F. App’x 751, 753 (10th Cir. 2011). The district court granted a COA on the exhaustion issue. See id. On appeal, we agreed with the district court, holding that Medicine Blanket’s claims in his December 2008 habeas a pplication were not fully exhausted, id. , but they were procedurally defaulted, id. at 755. Noting that he could “overcome procedural default by showing cause and pr ejudice or a fundamental miscarriage of justice” based on a claim of actual innocence, we held that, “[b]ecause Mr. Medicine Blanket makes no attempt to show cause or prejudice, and does not assert his innocence, the district court was correct to dismiss his claims with prejudice.” Id. at 755-56.- 3 - Medicine Blanket filed hi s latest § 2254 habeas app lication in August 2013. In light of the district c ourt’s dismissal with prejudice of his previous application filed in 2008, the court held this new fi ling was an unauthorized second or successive habeas application and dismissed it for lack of jurisdiction. Medicine Blanket filed a notice of appeal. Medicine Blanket must obtain a COA to pursue an appeal. See Montez v. McKinna , 208 F.3d 862, 866-67 (10t h Cir. 2000) (holding st ate prisoner must obtain COA to appeal “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court” (i nternal quotation marks omitted)); cf. United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008) (holding federal prisoner must obtain COA to appeal di strict court’s dismissal of unauthorized second or successive motion under 28 U.S.C. § 2255 for lack of jurisdiction). Because the district court’s ruling rested on procedural grounds, he must show both “that jurists of reason would find it debatabl e whether the petition states a valid claim of the denial of a constituti onal right and that jurists of reason would find it debatable whether the district court was corr ect in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). A prisoner’s ability to bring a second or successive § 2254 habeas application is limited. After a prisoner has filed a fi rst § 2254 petition, “[a] district court does not have jurisdiction to address the merits of a second or successive . . . § 2254 claim until this court has granted th e required authorization.” In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).- 4 - Although we liberally cons true Medicine Blanket’s pro se application for a COA, see Hall v. Scott , 292 F.3d 1264, 1266 (10th Cir. 2002), we have difficulty discerning his contentions of error in the di strict court’s dismissal of his latest § 2254 habeas application for lack of jurisdiction. He complains that the district court failed to construe his habeas application liberally . He does not show, however, that a more liberal construction could alte r the district court’s conclu sion that his application was second or successive and unauthorized. Medicine Blanket argues further that the district court failed to consider his supporting facts and should have given him the opportunity to assert cause and prejudice to overcome his procedural defau lt on his ineffective- assistance-of-counsel claims. But because he had filed an unauthorized second or successive application, the district court had no jurisdic tion to consider these issues. See In re Cline , 531 F.3d at 1251. Medicine Blanket also a sserts that jurisdiction ove r his claims arises under Fed. R. Crim. P. 41 and 18 U.S.C. § 1073. Rule 41 prescribes the authority and procedures for issuing and obtaining sear ch and seizure warrants. Section 1073 defines the crime of unlawful flight to a void prosecution. Medi cine Blanket does not explain how the rule or the statute grants the district court jurisdiction to consider second or successive habeas cl aims. Rather, he appears to be arguing the merits of one or more of his claims. Next Medicine Blanket contends that th e district court erred in deciding his habeas application was second or successive because a state appellate court had ruled- 5 - that one of his claims, in which he asserted his post-conviction counsel was ineffective, was not “successive.” But the district court properly applied the governing federal law to determine that his August 20 13 § 2254 habeas application, which he filed after his previous appli cation was dismissed with prejudice, was second or successive a nd required this cour t’s authorization. Finally, Medicine Blanket ma kes passing references to Fed. R. Civ. P. 60(b), perhaps suggesting that the di strict court had jurisdiction to review his claims under that rule. He does not develop this ar gument, nor did he file a motion under Rule 60(b) in the district court. We hold that jurists of reason would not debate the correctness of the district court’s dismissal of Medici ne Blanket’s § 22 54 habeas application for lack of jurisdiction as an unauthorized second or su ccessive application. Accordingly, we deny a COA and dismiss the appeal. We deny Medici ne Blanket’s motion for appointment of counsel, but grant his a pplication to proceed on appeal without prepayment or fees and costs. Entered for the Court

ELISABETH A. SHUMAKER, Clerk