FILED

United States Court of Appeals

Tenth Circuit

May 25, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

GREGORY LYNN GALES,

Movant.

No. 10-3109

(D.C. No. 5:10-CV-03701-SAC)

ORDER

Before TACHA, LUCERO, and HARTZ, Circuit Judges.

Gregory Lynn Gales, a Kansas state prisoner proceeding pro se, seeks

authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus

petition seeking to challenge his convictions. We deny authorization.

Mr. Gales was convicted in 2001 of intentional second-degree murder and

arson. He was sentenced to 286 months’ imprisonment. His conviction was

affirmed on direct appeal. In 2004, Mr. Gales filed his first § 2254 petition,

which was dismissed by the district court for failure to exhaust. Mr. Gales

appealed that decision in this court before seeking state post-conviction relief. 

After this court denied Mr. Gales a certificate of appealability (COA), Gales v.

Bruce, 136 F. App’x 179, 180 (10th Cir. 2005), he then sought state

post-conviction relief. After exhausting his claims in state court, he then filed his

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second § 2254 petition, which was dismissed as time-barred. This court again

denied Mr. Gales a COA, noting that he had been warned that 28 U.S.C.

§ 2244(d)(1)’s one-year statute of limitation would not be tolled by the appeal of

his first § 2254 petition. Gales v. Cline, 283 F. App’x 656, 656-57 (10th Cir.

2008).

Mr. Gales filed a third § 2254 petition in May 2009, which was dismissed

for lack of jurisdiction because he had not obtained the required authorization

from this court. Before a state prisoner may file a second or successive § 2254

petition, the prisoner must first “move in the appropriate court of appeals for an

order authorizing the district court to consider the application.” 28 U.S.C.

§ 2244(b)(3)(A). A district court does not have jurisdiction to address the merits

of a second or successive § 2254 petition unless the circuit court has granted the

required authorization. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). 

In 2009, Mr. Gales filed a petition seeking a 28 U.S.C. § 2241 writ of

habeas corpus, which was dismissed for failure to state a claim. Gales v. Cline,

No. 09-CV-03189 (D. Kan. Oct. 2, 2009); Gales v. Cline, No. 09-3303 (10th Cir.

Feb. 18, 2010) (unpublished order dismissing appeal for lack of prosecution). 

Mr. Gales filed a fourth, fifth and sixth § 2254 petition in district court in 2009

and 2010, all of which were denied for lack of jurisdiction because Mr. Gales

failed to obtain the required authorization from this court. See Gales v. Cline,

No. 09-CV-3228 (D. Kan. Nov. 18, 2009); Gales v. Cline, No. 10-CV-3071

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(D. Kan. Apr. 19, 2010); and Gales v. Cline, No. 10-CV-3091 (D. Kan. Apr. 22,

2010).

Mr. Gales then filed this motion for authorization to file his proposed

§ 2254 petition. He wishes to present the following claims: (1) “[r]ulings were

made on search warrants without jurisdiction due to no case numbers”; and (2) the

court was without jurisdiction because there were no numbers on the warrants. 

Mot. at 6. As to each, Mr. Gales must show that he has not raised his claim in a

previous habeas application, 28 U.S.C. § 2244(b)(1), and that his new claim either

“relies on a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable,” id.

§ 2244(b)(2)(A), or depends on facts, previously undiscoverable through the

exercise of due diligence, that “if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and convincing evidence that, but

for constitutional error, no reasonable factfinder would have found [him] guilty,”

id. § 2244(b)(2)(B). 

Mr. Gales concedes that neither proposed claim is based on newly

discovered evidence or on a new rule of constitutional law. Mot. at 6-7. Based

on our review of his motion, we conclude that Mr. Gales has failed to demonstrate

that his proposed claims satisfy the required standards for authorization. 

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Accordingly, we DENY authorization. This matter is DISMISSED. This

denial of authorization is not appealable and “shall not be the subject of a petition

for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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