UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ERNEST BRIM, a/k/a Bernard Horne, 

 Petitioner - Appellant, 

v. 

BERRY GOODRICH, 

Warden/Superintendent, BCCF; THE 

ATTORNEY GENERAL OF THE 

STATE OF COLORADO, 

 Respondents - Appellees. 

No. 15-1114 

(D.C. No. 1:14-CV-01784-LTB) 

(D. Colo.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before BRISCOE, Chief Judge, HARTZ and HOLMES, Circuit Judges. 

 

 Ernest Brim a/k/a Bernard Horne, a Colorado prisoner proceeding pro se, seeks 

a certificate of appealability (COA) to appeal the district court’s dismissal of his 

28 U.S.C. § 2254 habeas corpus application for lack of jurisdiction. He also seeks 

leave to proceed on appeal in forma pauperis (IFP). Exercising jurisdiction under 

28 U.S.C. §§ 1291 and 2253(a), we conclude that the application for a COA is 

frivolous and deny it. 

 

* This order is not binding precedent except under the doctrines of law of the 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

July 13, 2015

Elisabeth A. Shumaker 

Clerk of Court
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 Mr. Brim was convicted in Colorado state court in March 1987 of aggravated 

robbery and theft, as well as conspiracy to commit those crimes, and he was 

sentenced to life imprisonment as a habitual criminal. Brim v. Zavaras, 371 F. App’x 

885, 885 (10th Cir. 2010) (No. 09-1516). In May 2009, he filed his first § 2254 

habeas petition, which the district court dismissed as time-barred. Id. at 886. He 

sought to appeal, but we agreed with the district court and denied his application for 

a COA. See id. at 886-87. 

 In his most recent petition, Mr. Brim challenged the validity of his sentence as 

a habitual criminal. D.C. Doc. 34, at 2. In an order entered on February 18, 2015, 

the district court determined that he had raised the same claim in his first habeas 

petition, which had been dismissed as time-barred, and that the new petition was an 

unauthorized successive petition that must be dismissed for lack of jurisdiction. Id.

at 2-4. The court declined to transfer the petition to this court for authorization 

because Mr. Brim failed to show that his claim was “based on either a new rule of 

constitutional law or newly discovered evidence as required pursuant to [28 U.S.C.] 

§ 2244(b)(2),” because his claim was time-barred, and because “there is no indication 

that the claim Mr. Brim seeks to raise has any merit.” Id. at 4-5. The court denied 

Mr. Brim a COA and denied his motion for leave to proceed on appeal IFP because 

any appeal would be frivolous. See id. at 5. 
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I. Notice of Appeal 

 Mr. Brim’s notice of appeal was filed on March 23. On March 31, we entered 

an order noting that Mr. Brim’s notice of appeal was due by March 20 under 

Fed. R. App. P. 4(a)(1)(A), and directing Mr. Brim to file a memorandum brief 

addressing the timeliness of his notice of appeal. In his brief, he declared under 

penalty of perjury that, on March 18, 2015, he placed his notice of appeal, with 

postage affixed, in the hands of a prison official to be placed in the mail, so he is 

entitled to the benefit of the prison mailbox rule. Generally, “a pro se prisoner’s 

notice of appeal will be considered timely if given to prison officials for mailing 

prior to the filing deadline.” Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 

2005). We accept Mr. Brim’s sworn declaration. Accordingly, we will consider his 

application for a COA. 

II. COA and IFP 

 A COA is a jurisdictional prerequisite to our review of the district court’s 

decision. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). We will issue a 

COA “only if [Mr. Brim] has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied his 

habeas application on procedural grounds, we will grant a COA only if the district 

court’s procedural ruling is reasonably debatable. See Slack v. McDaniel, 529 U.S. 

473, 484 (2000). 
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 We conclude that it is not debatable. “The dismissal of Mr. [Brim’s] first 

habeas petition as time-barred was a decision on the merits. . . .” In re Rains, 

659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam). Because the habeas application 

Mr. Brim filed in 2009 was adjudicated on the merits, the recent application he 

presented to the district court was second or successive, and he was required to 

obtain this court’s authorization to file it. See 28 U.S.C. § 2244(b)(3)(A). But he did 

not do so. In his current request for a COA, Mr. Brim does not provide a basis for 

granting a COA. 

 “A district court does not have jurisdiction to address the merits of a second or 

successive . . . § 2254 claim until this court has granted the required authorization.” 

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). When presented with 

an unauthorized second or successive application, the district court has the option to 

transfer the application to this court if a transfer is in the interest of justice or dismiss 

it for lack of jurisdiction. See id. at 1252. The district court decided to dismiss, 

clearly explaining its reasons for that decision. Nothing before us indicates that any 

reasonable jurist would disagree with it. The COA application is frivolous. 

 In order to succeed on a motion for leave to proceed IFP on his COA 

application, Mr. Brim “must show a financial inability to pay the required filing fees 

and the existence of 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) (addressing standard for IFP on appeal). He has not shown a 

nonfrivolous issue in his COA application. 

 Mr. Brim’s application for a COA and his motion for leave to proceed IFP are 

denied, and the matter is dismissed. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk