Manning v. State of Kansas ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 5, 2013
Elisabeth A. Shumaker
Clerk of Court
FAYVUN MANNING,
Petitioner-Appellant,
v. No. 13-3168
(D.C. No. 5:13-CV-03071-SAC)
STATE OF KANSAS, (D. Kan.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, HARTZ and MATHESON, Circuit Judges.
Fayvun Manning, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his second 28 U.S.C.
§ 2254 habeas petition for lack of jurisdiction. We deny a COA and dismiss the
matter.
Mr. Manning was convicted of aggravated robbery and first-degree felony
murder. The Kansas Supreme Court affirmed his conviction on direct appeal in
2001. Mr. Manning sought post-conviction relief in state court, but it was denied.
*
This order is not binding precedent except under the doctrines of law of the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.
In March 2006, Mr. Manning filed his first § 2254 habeas petition challenging
his convictions. The district court dismissed the petition with prejudice as
time-barred because it was filed outside of the one-year statute of limitations.
Mr. Manning did not seek to appeal that decision.
In March 2013, Mr. Manning filed a second § 2254 habeas petition. The
district court determined that this petition was an unauthorized second or successive
petition and dismissed it for lack of jurisdiction. Mr. Manning now seeks a COA to
appeal that dismissal.
To obtain a COA, Mr. Manning 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).
A prisoner may not file a second or successive § 2254 habeas petition unless
he first obtains an order from the circuit court authorizing the district court to
consider the petition. See 28 U.S.C. § 2244(b)(3)(A). In the absence of such
authorization, a district court lacks jurisdiction to address the merits of a second or
successive § 2254 habeas petition. See In re Cline, 531 F.3d 1249, 1251 (10th Cir.
2008) (per curiam).
Mr. Manning’s new § 2254 habeas petition asserts that (1) the charging
document was jurisdictionally defective in that it lacked essential elements of the
offense; (2) the jury instructions differed from the charge in the complaint; (3) trial
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counsel was ineffective; and (4) the State erred in summarily dismissing his
post-conviction motion and not excusing his failure to previously raise his claims.
Mr. Manning’s first § 2254 habeas petition brought claims attacking the same
conviction that he now seeks to challenge in his second § 2254 habeas petition. Even
though his first § 2254 habeas petition was dismissed as time-barred, that
determination still counts as “a decision on the merits, and any later habeas petition
challenging the same conviction is second or successive and is subject to the AEDPA
requirements.” In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam). The
district court therefore properly characterized Mr. Manning’s new petition as a
second or successive § 2254 habeas petition.
Reasonable jurists could not debate that the district court was correct to treat
Mr. Manning’s new petition as an unauthorized second or successive § 2254 habeas
petition and to dismiss it for lack of jurisdiction. Accordingly, we deny a COA and
dismiss this matter. We grant Mr. Manning’s motion for leave to proceed on appeal
without prepayment of costs or fees.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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