Christman v. Suthers ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 20 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
KAI CHRISTOPHER CHRISTMAN,
Petitioner-Appellant, No. 00-1439
v. (D.C. No. 00-K-1440)
JOHN W. SUTHERS, Ex. Dir. D.O.C.; (D. Colo.)
ROBERT W. FURLONG; and
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Petitioner was serving an indeterminate sentence in the Colorado penal
system when he escaped from the Colorado State Hospital. While on the lam, he
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
was convicted of child molestation in California, where he served time and was
later paroled. California then returned him to the custody of the Colorado
Department of Corrections. Petitioner filed a habeas corpus petition with the
federal district court of Colorado, arguing that Colorado has no authority to
further incarcerate him in light of a “discharge” letter he had received from the
Colorado State Hospital at some point after his escape. The court denied the
habeas petition and Petitioner’s subsequent requests for a certificate of
appealability and leave to proceed in forma pauperis on appeal. Petitioner
appeals all three district court orders.
Throughout these proceedings, Petitioner’s claims appear to have been
treated as though brought under 28 U.S.C. § 2254. Given the nature of his
claims, however, we note that, technically, they should have proceeded under 28
U.S.C. § 2241 as an attack on the execution of his sentence. See Montez v.
McKinna, 208 F.3d 862, 865 (10th Cir. 2000). Either way, the consequences are
the same in the instant case: Petitioner must obtain a certificate of appealability
prior to being heard on appeal. See id. at 868-69. A court will issue a certificate
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner could do so by
demonstrating that his claims warrant further proceedings, “subject to a different
resolution on appeal,” or are debatable among reasonable jurists. Montez, 208
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F.3d at 869. We agree with the district court that Petitioner has failed to make
the necessary showing. Accordingly, we DENY Petitioner’s request for a
certificate of appealability and DISMISS his habeas appeal. Petitioner’s
application to proceed in forma pauperis is DENIED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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