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.
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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This order is not binding precedent except under the doctrines of law of the case,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
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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
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