FILED

United States Court of Appeals

Tenth Circuit

February 18, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID M. PRICE,

Petitioner - Appellant,

v.

STATE OF KANSAS, ex rel.,

STEVEN N. SIX, Attorney General,

Respondents - Appellees.

No. 09-3302

(D. Kansas)

(D.C. No. 5:09-CV-03190-WEB)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges. 

This matter is before the court on David Price’s pro se request for a

certificate of appealability (“COA”). Price seeks a COA so he can appeal the

district court’s dismissal of his 28 U.S.C. § 2254 petition. See 28 U.S.C.

§ 2253(c)(1)(A). Because Price has not “made a substantial showing of the denial

of a constitutional right,” id. § 2253(c)(2), this court denies his request for a COA

and dismisses this appeal.

At the time of the filing of the instant § 2254 petition, Price was

incarcerated pursuant to a judgment of the Kansas Supreme Court, which found

him in indirect contempt for failing to cease the unauthorized practice of law. 

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Price did eventually appeal from the denial of his August 5th § 2254

petition. This court, however, dismissed the appeal as untimely in an unpublished

order. Price v. Kansas, No. 09-3268, at 2 (10th Cir. Dec. 15, 2009).

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The district court dismissed Price’s § 2254 petition for lack of jurisdiction,

concluding it was an unauthorized successive habeas petition. See 28 U.S.C.

§ 2244(b)(3) (“Before a second or successive application permitted by this section

is filed in the district court, the applicant shall move in the appropriate court of

appeals for an order authorizing the district court to consider the application.”). 

In particular, the district court noted Price had filed a previous § 2254 petition in

the United States District Court for the District of Kansas on August 5, 2009; the

district court had denied that petition on the merits on August 18, 2009; and Price

had not appealed that decision.1

 Because Price failed to obtain permission from

this court before filing the instant petition, the district court concluded it lacked

jurisdiction. Furthermore, because the instant petition did not present any ground

for relief not available at the time of the filing of Price’s August 5th petition and

did not assert any new claim that appeared meritorious, the district court declined

to transfer the petition to this court under 28 U.S.C. § 1631. In re Cline, 531 F.3d

1249, 1252 (10th Cir. 2008) (“When a second or successive § 2254 . . . claim is

filed in the district court without the required authorization from this court, the

district court may transfer the matter to this court if it determines it is in the

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interest of justice to do so under § 1631, or it may dismiss the motion or petition

for lack of jurisdiction.”).

The granting of a COA is a jurisdictional prerequisite to Price’s appeal

from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Price must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court

denies a petition on procedural grounds, a COA may issue only 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As noted above, the

district court dismissed Price’s petition as an unauthorized second or successive

§ 2254 petition. This is a procedural ruling requiring a COA. See United States

v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (discussing the COA analysis for

an unauthorized § 2255 motion).

Having undertaken a review of Price’s appellate filings, the district court’s

order, and the entire record before this court pursuant to the framework set out by

the Supreme Court in Miller-El, we conclude Price is not entitled to a COA. The

district court’s procedural determination—that Price’s § 2254 petition was an

unauthorized second or successive petition—is not reasonably subject to debate

and the issues Price seeks to raise on appeal are not adequate to deserve further

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proceedings. In particular, Price’s appellate filings do not even address the

district court’s conclusion that the instant § 2254 petition is an unauthorized

successive habeas petition. Instead, he challenges only the state court orders that

were the subject of the August 5th petition. Accordingly, this court DENIES

Price’s request for a COA and DISMISSES this appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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