                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 7, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JAMES SARDAKOWSKI,

      Petitioner - Appellant,

v.                                                            No. 17-1443
                                                     (D.C. No. 1:17-CV-01905-LTB)
MIKE REMARO,                                                    (D. Colo.)

      Respondent - Appellee.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                    _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

       Applicant James Sardakowski was incarcerated in a Colorado state prison when he

was charged with and convicted in state court of assault on a correctional officer. He was

sentenced to a term of four years, to be served consecutively to his prior sentence. He

unsuccessfully appealed in state court his new conviction and sentence, arguing, among

other things, that he was improperly denied credit toward the new sentence for the time

he was incarcerated between the date he was charged with assault and the date of his

sentencing. He then sought relief in the United States District Court for the District of

Colorado under 28 U.S.C. § 2241, but the court rejected his claim. He now seeks a

certificate of appealability (COA) so that he can appeal that decision. See Dulworth v.

Jones, 496 F.3d 1133, 1135 (10th Cir. 2007) (generally requiring COA to appeal adverse

decision in § 2241 proceeding).
       A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal

quotation marks omitted). In other words, the applicant must show that the district

court’s resolution of the constitutional claim was either “debatable or wrong.” Id.

       We deny a COA. It is not apparent to us what constitutional claim is being raised

by Applicant. But in any event, his argument is so clearly lacking in merit that no

reasonable jurist could debate the propriety of the district court’s dismissal of the § 2241

application.

       The Colorado statute governing sentence credit for presentencing incarceration is

Colo. Rev. Stat. § 18-1.3-405 (2017), which states:

       A person who is confined for an offense prior to the imposition of sentence
       for said offense is entitled to credit against the term of his or her sentence
       for the entire period of such confinement. At the time of sentencing, the
       court shall make a finding of the amount of presentence confinement to
       which the offender is entitled and shall include such finding in the
       mittimus. The period of confinement shall be deducted from the sentence
       by the department of corrections. A person who is confined pending a
       parole revocation hearing is entitled to credit for the entire period of such
       confinement against any period of reincarceration imposed in the parole
       revocation proceeding. The period of confinement shall be deducted from
       the period of reincarceration by the department of corrections. If a
       defendant is serving a sentence or is on parole for a previous offense when
       he or she commits a new offense and he or she continues to serve the
       sentence for the previous offense while charges on the new offense are
       pending, the credit given for presentence confinement under this section

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       shall be granted against the sentence the defendant is currently serving for
       the previous offense and shall not be granted against the sentence for the
       new offense.
(emphasis added). The final sentence of the statute is unambiguous. Applicant was not

entitled to any credit on his new sentence. The only credit to which he was entitled for

the time he was incarcerated on his prior sentence before his sentencing on the new

conviction was credit toward the prior sentence. And he does not contend that he was

denied that credit.

       We DENY a COA and DISMISS the appeal. We DENY Applicant’s request to

proceed in forma pauperis.

                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




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