UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ZABRIEL LEON EVANS, 

 Petitioner - Appellant, 

v. 

STATE OF KANSAS, 

 Respondent - Appellee. 

––––––––––––––––––––––––––––––––––– 

In re: ZABRIEL EVANS, 

 Movant. 

Nos. 22-3161 & 22-3179 

(D.C. No. 5:22-CV-03147-SAC) 

(D. Kan.) 

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ORDER

_________________________________ 

Before HOLMES, McHUGH, and ROSSMAN, Circuit Judges. 

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Zabriel Evans, proceeding pro se, seeks a certificate of appealability (COA) to 

appeal from the district court’s order dismissing his second § 2254 habeas application for 

lack of jurisdiction as an unauthorized successive application (No. 22-3161). He also 

seeks authorization to file his second § 2254 habeas application (No. 21-3179). We deny 

both a COA and authorization. 

I. Background 

In 2005, Mr. Evans was convicted after a jury trial of one count of rape, two 

counts of aggravated burglary, one count of aggravated criminal sodomy, and one count 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 29, 2022

Christopher M. Wolpert 

Clerk of Court

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of theft. He was sentenced to 620 months’ imprisonment. The Kansas Court of Appeals 

affirmed the judgment on direct appeal. 

In 2012, Mr. Evans filed his first § 2254 habeas application. The district court 

denied the habeas application, and we denied a COA. 

Earlier this year, Mr. Evans filed a second § 2254 habeas application. Because it 

was an unauthorized second or successive § 2254 habeas application, the district court 

dismissed it for lack of jurisdiction. Mr. Evans now seeks a COA to appeal from the 

district court’s dismissal order. He also seeks authorization to file a second or successive 

§ 2254 habeas application. 

II. COA (No. 22-3161) 

To obtain a COA where, as here, a district court has dismissed a filing on 

procedural grounds, the movant must show both “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). We need not 

address the constitutional question if we conclude that reasonable jurists would not 

debate the district court’s resolution of the procedural one. Id. at 485. 

 A prisoner may not file a second or successive § 2254 habeas application unless he 

first obtains an order from the circuit court authorizing the district court to consider the 

motion. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a district court lacks 

jurisdiction to address the merits of a second or successive § 2254 habeas application. 

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

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 In his COA application, Mr. Evans does not explain how the district court erred in 

its procedural ruling dismissing his second § 2254 habeas application for lack of 

jurisdiction as an unauthorized second or successive § 2254 habeas application. Instead, 

he argues the merits of his underlying second habeas application. Because Mr. Evans has 

not shown that jurists of reason would debate whether the district court’s procedural 

ruling was correct, we deny a COA. 

 III. Authorization (No. 22-3179) 

Mr. Evans also seeks authorization to file a second or successive § 2254 habeas 

application to bring the claims in his second habeas application. To receive 

authorization, he must make a prima facie showing that he can meet the requirements in 

§ 2244(b)(2). See § 2244(b)(3)(C). To do so, he must show: 

(A) . . . that the claim relies on a new rule of constitutional law, made 

retroactive to cases on collateral review by the Supreme Court, that was 

previously unavailable; or 

(B)(i) the factual predicate for the claim could not have been discovered 

previously through the exercise of due diligence; and 

(ii) the facts underlying the claim, 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 of the underlying offense. 

§ 2244(b)(2). 

Mr. Evans filed his motion for authorization on this court’s form and he checked 

boxes stating that his claims were based on newly discovered evidence and a new rule of 

law. See Mot. for Auth. at 9-10. For the description of his claims, the factual support, 

and the explanation of how his claims meet the requirements in § 2244(b)(2), he directs 

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the court to the COA application he filed in his appeal from the dismissal of his second 

habeas application, which he attached to the motion for authorization. See Mot. for Auth. 

at 8-10. 

The COA application recites the authorization standard from § 2244(b)(2), see

Mot. for Auth, Attach. at 3-4, but Mr. Evans does not go on to explain how his new 

claims meet that standard. He has therefore failed to make a prima facie showing that he 

can satisfy the authorization requirements in § 2244(b)(2). 

IV. Conclusion 

 In No. 22-3161, we deny a COA and dismiss the matter. In No. 22-3179, we deny 

authorization. The denial of authorization “shall not be 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 

CHRISTOPHER M. WOLPERT, Clerk 

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