UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ARTHUR ANTHONY GONZALES, 

 Petitioner - Appellant, 

v. 

STATE OF UTAH, 

 Respondent - Appellee. 

No. 14-4131 

(D.C. No. 2:13-CV-00874-CW) 

(D. Utah)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before LUCERO, TYMKOVICH, and BACHARACH, Circuit Judges. 

 

 Arthur Anthony Gonzales seeks a certificate of appealability (COA) to appeal 

from the district court’s dismissal of his second 28 U.S.C. § 2254 habeas application 

for lack of jurisdiction. We deny a COA and dismiss this matter. 

 After being convicted of attempted rape and forcible sexual abuse, 

Mr. Gonzales unsuccessfully sought relief under § 2254. See Gonzales v. Clark, 

371 F. App’x 942, 943-45 (10th Cir. 2010). In September 2013, he filed a new 

§ 2254 application. The district court granted the State’s motion to dismiss for lack 

of jurisdiction, holding that the new application was a second or successive § 2254 

 

* This order is not binding precedent except under the doctrines of law of the 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

February 4, 2015

Elisabeth A. Shumaker 

Clerk of Court

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application that had not been authorized by this court. The district court also 

declined to transfer the application to this court for authorization because the habeas 

claims would be time-barred and/or procedurally defaulted, and because the claims 

would not meet the standards for authorization set forth in 28 U.S.C. § 2244(b)(2). 

 To appeal from the district court’s dismissal, Mr. Gonzales must obtain a 

COA. See 28 U.S.C. § 2253(c). To do that, he must show “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). In this case, we need examine only the procedural ruling. 

 Jurists of reason would not find the dismissal debatable. Congress has placed 

strict limitations on § 2254 applications. Generally, once a state prisoner has pursued 

relief under § 2254, the court of appeals must authorize any later § 2254 application 

before the prisoner can file that application in the district court. See 28 U.S.C. 

§ 2244(b)(3). If he files without that authorization, the district court lacks 

jurisdiction to consider the merits of the application. See In re Cline, 531 F.3d 1249, 

1251 (10th Cir. 2008) (per curiam). When faced with an unauthorized second or 

successive § 2254 application, the district court has two choices: dismiss for lack of 

jurisdiction, or transfer the application to this court for authorization if a transfer 

would be in the interest of justice under 28 U.S.C. § 1631. See Cline, 531 F.3d at 

1252. Because Mr. Gonzales already sought relief under § 2254, and the 

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unauthorized new § 2254 application again attacked the validity of his convictions, 

the district court did not err in holding that it lacked jurisdiction to consider the 

merits of the new application. See id. at 1251. 

 Mr. Gonzales suggests that the district court should have transferred the 

application to this court rather than dismissing it. Whether to dismiss or to transfer 

an unauthorized second or successive § 2254 application is a matter within the 

district court’s discretion. See id. at 1251, 1252. But as the district court recognized, 

the new application failed to present any claims that would be eligible for 

authorization under 28 U.S.C. § 2244(b)(2). “Where there is no risk that a 

meritorious successive claim will be lost absent a § 1631 transfer, a district court 

does not abuse its discretion if it concludes it is not in the interest of justice to 

transfer the matter to this court for authorization.” Cline, 531 F.3d at 1252. 

 We deny Mr. Gonzales’ “Notice Motion for Redetermination of Facts, on 

Appointment of Counsel,” construed as a motion to reconsider the court’s denial of 

appointment of counsel in this proceeding. We grant Mr. Gonzales’s motion to 

proceed without prepayment of fees and costs, but we deny a COA and dismiss this 

matter. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk 

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