JOHNSON v. FNU PETERSON (2021)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Noble Leroy Johnson, a Kansas prisoner proceeding pro se,¹ seeks to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition. We deny Johnson's request for a certificate of appealability (COA) and dismiss this matter.

A jury convicted Johnson of two counts of first-degree murder in 1976. A Kansas court sentenced him to two concurrent life sentences. Johnson filed a § 2254 petition in 1997. The district court denied relief, and this court affirmed. See Johnson v. McKune, 288 F.3d 1187 (10th Cir. 2002).

In 2021, Johnson filed another § 2254 petition in the district court.² The district court dismissed the petition for lack of jurisdiction. Johnson seeks to appeal the dismissal.

Johnson must obtain a COA before he can appeal. See 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding “a state prisoner must obtain a COA to appeal the denial of a habeas petition ․ filed pursuant to § 2254 ․ whenever the detention complained of in the petition arises out of process issued by a State court” (brackets and internal quotation marks omitted)). To obtain a COA, Johnson 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (emphasis added). Johnson has not met this burden.

“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). The district court concluded that it lacked jurisdiction to consider Johnson's petition because it was second or successive and this court had not authorized it. Reasonable jurists could not debate the correctness of the district court's procedural ruling. We therefore deny Johnson's application for a COA, grant the motion to proceed without prepayment of costs of fees, and dismiss this matter.

FOOTNOTES

1.   Because Johnson appears pro se, we construe his filings liberally but do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

2.   In his combined application for a certificate of appealability and opening brief, Johnson refers to his habeas petition as being filed under Fed. R. Civ. P. 60(b) and, alternatively, as being filed under Kan. Stat. Ann. § 60-1507. But the record confirms Johnson filed a “PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY.” R. at 3. And Johnson does not argue the district court erred by construing his filing as a § 2254 petition. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an opening brief generally forfeits appellate consideration of that issue.”).