Kolosha v. Pettigrew ( 2021 )

Appellate Case: 21-5073 Document: 010110625366 Date Filed: 12/29/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 29, 2021
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Christopher M. Wolpert
Clerk of Court
VITALY KOLOSHA,
Petitioner - Appellant,
v. No. 21-5073
(D.C. No. 4:21-CV-00354-JFH-CFL)
LUKE PETTIGREW, Warden, (N.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.
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Vitaly Kolosha, an Oklahoma prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his pleading titled “A First
Impression Constitutional Question Petition for a 28 U.S.C. § 2241 Habeas Corpus or
28 U.S.C. § 1651” (“Petition”) as an unauthorized second or successive 28 U.S.C. § 2254habeas petition. We deny a COA.
I. Background
Mr. Kolosha was convicted after a jury trial of four counts of lewd molestation.
He was sentenced to twenty-seven years in prison. The Oklahoma Court of Criminal
*
This order is not binding precedent except under the doctrines of law of the case,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: 21-5073 Document: 010110625366 Date Filed: 12/29/2021 Page: 2
Appeals affirmed his convictions and sentence. Mr. Kolosha filed his first § 2254 habeas
petition in 2012. The district court denied relief, and this court denied Mr. Kolosha’s
request for a COA.
Prior to filing the Petition, Mr. Kolosha filed three successive § 2254 habeas
petitions that the district court dismissed for lack of jurisdiction because he had not
received authorization from this court to file them. Mr. Kolosha did seek authorization to
file a successive § 2254 habeas petition in 2019, but we denied his request because he
failed to meet the requirements for authorization in 28 U.S.C. § 2244(b)(2).
In August 2021, he filed the Petition. In it, he challenged his detention and argued
that the State of Oklahoma lacked jurisdiction to prosecute him for crimes he committed
in Indian Country. The district court construed the Petition as a § 2254 habeas petition
because Mr. Kolosha is incarcerated pursuant to a state court judgment and his sole claim
seeks to collaterally attack the validity of that judgment. Because Mr. Kolosha had not
obtained authorization to file a second or successive § 2254 habeas petition, the district
court dismissed it for lack of jurisdiction. He now seeks a COA to appeal from that
dismissal.
II. Discussion
To obtain a COA where, as here, a district court has dismissed a filing on
procedural grounds, the movant must show both “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). We need not
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address the constitutional question if we conclude that reasonable jurists would not
debate the district court’s resolution of the procedural one. See id. at 485.
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. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a district court lacks
jurisdiction to address the merits of a second or successive § 2254 habeas petition.
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
In his COA application, Mr. Kolosha primarily argues the merits of his claim that
the State lacked jurisdiction to prosecute and detain him for crimes committed when he
was inside another sovereign nation. Those arguments, however, do not address how the
district court erred in construing the Petition as an unauthorized second or successive
§ 2254 habeas petition and dismissing it for lack of jurisdiction.
Mr. Kolosha does assert that his claim is “not a 2254 but a 2241 issue.” COA
App. at 2. But we have explained that “[s]ection § 2241 is a vehicle for challenging
pretrial detention, . . . or for attacking the execution of a sentence” and “[a] § 2254
petition, on the other hand, is the proper avenue for attacking the validity of a conviction
and sentence.” Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir. 2008).
Mr. Kolosha’s claim that the State lacked jurisdiction to prosecute him is an attack on the
validity of his conviction and sentence and is properly brought in a § 2254 habeas
petition. He has therefore failed to show that reasonable jurists could debate the district
court’s procedural ruling to treat the Petition as an unauthorized second or successive
§ 2254 habeas petition and dismiss it for lack of jurisdiction.
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For the foregoing reasons, we deny a COA. We grant Mr. Kolosha’s motion for
leave to proceed without prepayment of costs or fees.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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