Kolosha v. Rogers

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 9, 2024
• Docket: 24-5002
• Status: Unpublished

Opinion

Appellate Case: 24-5002 Document: 010111028886 Date Filed: 04/09/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 9, 2024 _________________________________ Christopher M. Wolpert Clerk of Court VITALY KOLOSHA,

Petitioner - Appellant,

v. No. 24-5002 (D.C. No. 4:23-CV-00481-GKF-JFJ) DAVID ROGERS, Warden, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, McHUGH, and ROSSMAN, Circuit Judges. _________________________________

Vitaly Kolosha is an Oklahoma prisoner who has previously and

unsuccessfully sought relief from his convictions through 28 U.S.C. § 2254. He

recently filed a 28 U.S.C. § 2241 petition arguing that he should be released from

prison because he is factually innocent and he was convicted in violation of the

Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments. He argued, for

example, that the prosecution intentionally suppressed exculpatory, material

evidence.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-5002 Document: 010111028886 Date Filed: 04/09/2024 Page: 2

The district court construed Mr. Kolosha’s petition as a new § 2254 petition,

rather than a § 2241 petition. The district court then dismissed the petition for lack

of jurisdiction because it fell within the definition of “second or successive” and this

court had not authorized Mr. Kolosha to bring his new claims. See 28 U.S.C.

§ 2244(b)(3)(A).

Mr. Kolosha filed a timely notice of appeal. The question before us is whether

to issue a certificate of appealability (COA) so Mr. Kolosha may appeal the district

court’s decision to construe his § 2241 petition as a § 2254 petition and dismiss it for

lack of jurisdiction.

To merit a COA, Mr. Kolosha “must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). And he must make an extra showing in

this circumstance because the district court resolved his motion on a procedural basis,

namely, lack of jurisdiction. So he must also show that “jurists of reason would find

it debatable whether the district court was correct in its procedural ruling.” Id.

Jurists of reason would not find the district court’s procedural ruling debatable.

First, the court correctly recognized that Mr. Kolosha’s petition was, in substance, a

§ 2254 petition, not a § 2241 petition. “A petition under 28 U.S.C. § 2241 attacks the

execution of a sentence rather than its validity . . . .” Bradshaw v. Story, 86 F.3d 164,

166 (10th Cir. 1996). Examples of attacks on the “execution” of the sentence include

claims that the prison will not release prisoner even though he has fully served his

sentence, see United States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986), or that the

2 Appellate Case: 24-5002 Document: 010111028886 Date Filed: 04/09/2024 Page: 3

prison has unlawfully administered its system of good-time credits, see Dulworth v.

Evans, 442 F.3d 1265, 1266–67 & n.2 (10th Cir. 2006). Mr. Kolosha’s petition,

however, “assert[s] [a] federal basis for relief from a state court’s judgment of

conviction,” Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). Such a claim counts as a

§ 2254 claim, even if Mr. Kolosha gives it a different label. See id. at 531.

Second, the district court correctly concluded that this court must authorize

second or successive § 2254 claims. See 28 U.S.C. § 2244(b)(3)(A). Thus, because

Mr. Kolosha previously brought a § 2254 claim and he had not received this court’s

permission to bring a new claim attacking the same judgment, the district court

properly dismissed it for lack of jurisdiction.

For these reasons, we deny a COA and terminate this matter. We grant

Mr. Kolosha’s motion to proceed without prepayment of costs or fees.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk