UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RONALD LEE SMITH, Petitioner - Appellant,

v. JASON LENGERICH, Warden; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. No. 20-1129 (D.C. No. 1:19-CV -03535-LTB-GPG) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY 

________________ _________________ Before PHILLIPS , MURPHY and McHUGH , Circuit Judges.

________________ _________________ Ronald Lee Smith seeks a certificate of a ppealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2254 habeas application for lack of jurisdiction. We deny a COA and dismiss this appeal. Background Smith is a Colorado state prisoner proceedin g pro se. After an unsuccessful direct appeal of his 1991 state cour t convictions, Smith filed his first § 2254 application in

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### November 13, 2020 Christopher M. Wolpert Clerk of Court2 2002. The district court dismissed it as time-barred. See 28 U.S.C. § 2244(d)(1). We denied a COA and dismissed his appeal. This matter involves Smith’s third unaut horized second or successive § 2254 application. In 2006, he filed an application in district court, which that court transferred to us as a motion for authorization. We de nied authorization, noting that his proposed motion raised the same claims he raised in his first § 2254 application. Then, in 2011, Smith filed another unauthorized application in district cour t, which the court dismissed for lack of jurisdiction. He filed the applicat ion at issue here in 2019, asserting claims of entitlement to counsel and ineffe ctive assistance of counsel. The district court referred the matter to a magistrate judge, who concluded it was yet another unauthorized second or successi ve application and re commended that the district court dismiss it for lack of juri sdiction. The magistrate judge’s report and recommendation (Recommendation) advised Smith of the deadline for filing any objections and that his failure to object could bar both de n ovo review by the district court and appellate review by this court under our firm waiver rule. See Moore v. United States , 950 F.2d 656, 659 (10th Cir.1991) (explain ing that under our firm waiver rule, the failure to timely object to a magistrate judge’s finding and recommendations waives appellate review of both factua l and legal questions as long as the litigant was advised of the consequences of failing to object). Afte r Smith failed to object, the district court accepted the Recommendation and dismissed his § 2254 application. It also denied Smith’s motions to reconsider in whic h he claimed he had not received the Recommendation. The court noted that th e Recommendation was sent to the address3 Smith had provided and was not returned as undeliverable, and it concluded he failed to rebut the presumpt ion of receipt. See Witt v. Roadway Exp. , 136 F.3d 1424, 1429-30 (10th Cir. 1998) (“A rebuttable presumption of receipt does arise on evidence that a properly addressed piece of mail is placed in the care of the postal service.”). Discussion 1. Firm Waiver Rule After Smith filed his notice of appeal, we ordered him to show cause why he has not waived his right to appellate review of the district court’s dismissal order by failing to timely object to the Recommendation. In re sponse, he maintains he did not receive the Recommendation, though he ackn owledges he received the re ferral order that was issued and mailed to him at the same address the same day. The district court’s docket reflects that the court served the R ecommendation on Smith by mail, but we accept his assertion that he did not receive it—it is entirely possi ble both that the district court mailed a copy of the Recommendation and that he did not r eceive it. We thus discharge the order to show cause and do not apply the firm waiver rule. See Wirsching v. Colorado , 360 F.3d 1191, 1197-98 (10th Cir. 2004) (recognizing that firm waiver rule is not jurisdictional and applying interests of jus tice exception where pro se part y claimed he had not received magistrate judge’s order and had otherwise been an attentive litigant). 2. Certificate of Appealability To appeal the district court’s order, Smith must obtain a COA. See 28 U.S.C. § 2253(c)(1)(B). To obtain a COA where, as here, a district court dismisses a § 2254 application on procedural gro unds, the petitioner must show “that jurists of reason would4 find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). A prisoner may not file a second or su ccessive § 2254 petition unless he first obtains an order from the circuit court author izing the district court to consider the petition. 28 U.S.C. § 2244(b)( 3)(A). Absent such authoriza tion, a district court lacks jurisdiction to address the merits of a second or successive § 2254 petition. In re Cline , 531 F.3d 1249, 1251 (10th Ci r. 2008) (per curiam). We liberally construe Smith’s combined application for a COA and opening brief. See Hall v. Scott , 292 F.3d 1264, 1266 (10th Cir. 2002 ). But he does not dispute that he previously filed a § 2254 moti on and that he did not obtain authoriza tion from this court to file another one. And his assertion th at his underlying claims are meritorious and deserve review does not establish that the dist rict court’s procedural ruling—its dismissal of his application as successive and unauthorized—is debatable. Conclusion Because Smith has not shown that jurist s of reason would de bate whether the district court’s procedural ruling was correct , we deny a COA and dismiss this appeal. Smith’s motion to proceed on appeal without pr epayment of filing fees is granted, and we remind him of his obligation to conti nue making partial payments toward his5 appellate filing fee until the entire balance is paid in full. See 28 U.S.C. § 1915(b)(1)-(2).

Entered for the Court Michael R. Murphy Circuit Judge