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

                            FOR THE TENTH CIRCUIT                        December 6, 2012

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
WADE COLE,

             Petitioner-Appellant,

v.                                                          No. 12-1316
                                                   (D.C. No. 1:12-CV-00677-LTB)
VANCE EVERETT, Warden, Kit Carson                             (D. Colo.)
Correctional Center; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,

             Defendants-Appellees.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before MURPHY, TYMKOVICH, and HOLMES, Circuit Judges.


      Petitioner Wade Cole seeks a certificate of appealability (COA) to obtain

review of a district court order dismissing his most recent habeas application as an

unauthorized second or successive application that it lacked jurisdiction to hear under

28 U.S.C. § 2244(b)(3). We may grant a COA only if reasonable jurists could debate

whether (1) the district court’s jurisdictional ruling was correct and (2) the

allegations in the habeas application are sufficient to state a valid constitutional


*
       This order is not binding precedent except under the doctrines of law of the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.
claim. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). As explained below,

Mr. Cole cannot satisfy the first requirement. We therefore deny a COA and dismiss

this appeal.

      Mr. Cole was convicted after a jury trial in 2001 of enticement of a child,

Colo. Rev. Stat. § 18-3-305, and given an enhanced indeterminate sentence of ten

years to life pursuant to Colorado’s Sex Offender Lifetime Supervision Act of 1998

(SOLSA), id. § 18-1.3-1002 et seq. After a prior unsuccessful 28 U.S.C. § 2254

application, he filed the instant action under 28 U.S.C. § 2241 challenging the

constitutionality of SOLSA and seeking his immediate release. The district court

directed him to amend his application to specify that it was brought under § 2254,

and ultimately determined that it was subject to dismissal as second or successive.

      Mr. Cole argued against dismissal on two bases: (1) he should be allowed to

proceed under § 2241 without § 2244(b)(3) authorization, because he is not attacking

his conviction but only challenging the constitutionality of SOLSA and his resultant

sentence; and (2) his claim did not become ripe until recently, after he served the

minimum ten years of his sentence, because the Colorado courts would not have

entertained a challenge to his SOLSA sentence before that time, when he could not

claim a right to immediate release. The district court properly rejected the first

contention, noting that while Mr. Cole was challenging the constitutionality of

SOLSA, he was doing so in order to invalidate his sentence and thereby obtain his

immediate release—relief that is clearly appropriate to a habeas application under


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§ 2254, see, e.g., Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (“To the

extent [a state prisoner] is challenging the validity or legality of the sentence he is

currently serving, his claim should be brought under § 2254.”)1 The court properly

rejected the second contention, noting that challenges to SOLSA sentences may be

brought as early as direct appeal, see, e.g., People v. Clark, 214 P.3d 531, 543-44

(Colo. App. 2009), aff’d, 232 P.3d 1287 (Colo. 2010), and, more specifically, that

post-conviction relief from illegal, illegally-imposed, or constitutionally invalid

SOLSA sentences may be sought under Colo. R. Crim. P. 35(a) and (c) without

regard to whether immediate release will result (indeed, given specified time limits,

some of these challenges must be brought well before release would result). See

People v. Collier, 151 P.3d 668, 672 (Colo. App. 2006) (discussing application of

Rule 35(a) and (c) to various constitutional and statutory challenges to SOLSA

sentence); see also People v. Firth, 205 P.3d 445, 447-48, 452 (Colo. App. 2008)

(reviewing constitutional challenges to SOLSA under Rule 35(c) before defendant

had served minimum six-year term of his indeterminate sentence).2


1
       In this same vein, Mr. Cole contends he is not challenging the imposition of
his sentence, but its execution, and thus should have been allowed to proceed under
§ 2241. He misunderstands the imposition/execution distinction. Everything that he
currently objects to about his SOLSA sentence was extant, enforceable, and subject
to challenge when the sentence was imposed; none of his claims concern subsequent
independent unconstitutional actions taken by those charged with its execution.
2
       Mr. Cole cites cases holding that actions filed under the state habeas statute
challenging the lawfulness of continued confinement, such as actions involving good
time credits or certain parole matters, cannot be brought until immediate release
would result. As the above authorities reflect, such cases are inapposite in
                                                                            (continued)
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      On appeal, Mr. Cole raises procedural objections to certain post-conviction

decisions of the Colorado courts. These matters are not properly before us. He also

contends that the district court should not have directed him to name his current

warden as the respondent in his amended application under § 2254, because he is

confined in a private prison facility. Given that his habeas action was properly

dismissed for lack of jurisdiction, we need not resolve who would have qualified as

the proper respondent.

      The request for COA is DENIED and the appeal is DISMISSED. The pending

motion to proceed in forma pauperis is GRANTED.

                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




circumstances governed by Rule 35. See generally People v. Wirsching, 30 P.3d 227,
229 (Colo. App. 2000).


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