                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                      UNITED STATES COURT OF APPEALS                 April 13, 2016
                                                                  Elisabeth A. Shumaker
                                    TENTH CIRCUIT                     Clerk of Court


 VITALY BORISOVICH KOLOSHA,

          Petitioner - Appellant,
                                                          No. 15-5080
 v.
                                              (D.C. No. 4:12-CV-00465-JHP-PJC)
                                                          (N.D. Okla.)
 CARL BEAR, Warden,

          Respondent - Appellee


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.


      Vitaly Borisovich Kolosha, a state prisoner proceeding pro se, 1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. He also moves us to

direct the district court to address the merits of the claims he raised in an

unsuccessful motion to amend or supplement his habeas petition, and to


      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
              Because Mr. Kolosha appears pro se, we construe his filings
liberally, see, e.g., Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but
we do not craft arguments or otherwise advocate for him, see Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
reconsider his request to stay his appeal. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we conclude that Mr. Kolosha has not made the required showing

for a COA to issue, and that his two motions are without merit. Accordingly, we

deny his application for a COA, deny his motions, and dismiss this matter.

                                          I

                                          A

      An Oklahoma state jury found Mr. Kolosha guilty of four counts of lewd

molestation, and the trial court sentenced him to twenty-seven years’

imprisonment. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his

conviction and his sentence. Mr. Kolosha then filed a motion for postconviction

relief. The state district court denied his motion for postconviction relief, and the

OCCA affirmed.

      On August 21, 2012, Mr. Kolosha filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for

the Northern District of Oklahoma. He asserted the following nine grounds for

relief: (1) the trial court erred in admitting testimony about incidents of sexual

abuse that were disclosed—but later recanted—by an additional possible victim;

(2) the same testimony, which constituted “other crimes evidence,” was not

established by “clear and convincing evidence” as required by Oklahoma state

law; (3) this “other crimes evidence” resulted in an excessive sentence; (4) trial

counsel was constitutionally ineffective for failing to hire a Russian interpreter;

                                          2
(5) trial counsel was constitutionally ineffective for failing to call Mr. Kolosha to

testify after she told the jury that he would; (6) Mr. Kolosha was denied his right

to testify; (7) the trial court failed to state for the record what facts and

circumstances supported its finding that two victims’ hearsay statements were

reliable; (8) the trial court failed to provide a ruling regarding the admissibility of

a videotape of a victim’s interview; and (9) the trial court erred in allowing the

videotape to be sent to the deliberation room with the jury.

      In a very thorough order issued on August 6, 2015, the district court

concluded that Mr. Kolosha was not entitled to habeas relief. Accordingly, it

dismissed the action and denied a COA. The district court denied Mr. Kolosha’s

first three claims on the merits, and found that his remaining claims were

procedurally defaulted. Specifically, regarding the first three claims, the court

concluded that: (1–2) Mr. Kolosha failed to show that the admission of the “other

crimes evidence” resulted in a fundamentally unfair trial; and (3) because Mr.

Kolosha’s sentence was within statutory limits and authorized by Oklahoma state

law, the court had no discretion to review it.

      Regarding Mr. Kolosha’s six remaining claims for habeas relief—which he

had raised for the first time in his state application for postconviction relief—the

court concluded that they were procedurally defaulted because the OCCA had

found them barred on an independent and adequate state procedural ground, Mr.




                                            3
Kolosha had provided no new evidence of his innocence, and Mr. Kolosha could

not demonstrate cause for the default or actual prejudice.

      In reaching this procedural conclusion, the court rejected Mr. Kolosha’s

argument that the cause of his default was appellate counsel’s constitutional

ineffectiveness for failing to raise the claims on direct appeal because the court

determined that none of the remaining claims were so plainly meritorious that

appellate counsel was unreasonable for not raising them. The court explained its

determination with regard to each remaining claim in detail. In brief,

it concluded: (4) Mr. Kolosha failed to show a reasonable probability that, had

appellate counsel raised his interpreter claim, he would have been granted relief

because the record indicates that he did not need an interpreter; (5) Mr. Kolosha

failed to show that trial counsel was deficient for not calling him to testify

because she never told the jury that he would; (6) Mr. Kolosha failed to show a

reasonable probability that, had appellate counsel raised his waiver-of-his-right-

to-testify claim, he would have been granted relief because in an extensive

colloquy with the court, he waived that right; (7–8) Mr. Kolosha failed to show a

reasonable probability that, had appellate counsel raised claims relating to the

admission of two victims’ prior statements, he would have been granted relief

because the trial court’s failure to support its admissibility finding was harmless

beyond a reasonable doubt; and (9) Mr. Kolosha failed to show a reasonable

probability that, had appellate counsel raised his video-in-deliberation-room

                                           4
claim, he would have been granted relief because the video was admitted during

trial without objection, did not render the trial fundamentally unfair, and defense

counsel invited any error.

      The district court then denied a COA. The court explained that its

application of the standards of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), see 28 U.S.C. § 2254(d), to the OCCA’s decision regarding Mr.

Kolosha’s first three claims was not debatable among jurists of reason. The court

continued that Mr. Kolosha had failed to show that the court’s denial of his

remaining six claims on procedural grounds was debatable or incorrect. For these

reasons, the court entered judgment against Mr. Kolosha on August 6, 2015.

      On August 31, 2015, Mr. Kolosha moved for permission to amend his

habeas petition and to vacate the district court’s order; then, on September 3,

2015, he filed a notice of appeal and an application for a COA. In a single order

issued on September 22, 2015, the district court dismissed Mr. Kolosha’s motion

and denied his application for a COA. First, the court construed the motion as a

motion to alter or amend the judgment under Federal Rule of Civil Procedure

59(e) because it was filed within twenty-eight days of the entry of judgment.

However, because Mr. Kolosha’s motion challenged the substance of the court’s

resolution of his claims rather than some defect in the integrity of the federal

habeas proceedings, the court treated it as an unauthorized second or successive




                                          5
petition under § 2254(b), and dismissed it for lack of jurisdiction. 2 Next, the

court denied Mr. Kolosha’s request for reconsideration of its prior denial of a

COA because he had presented nothing indicating that the court had erred.

                                           B

      On appeal, Mr. Kolosha filed a combined opening brief and application for

a COA on October 6, 2015. He challenges the denial of his habeas petition, the

denial of his motion to amend his petition, and the denial of a COA. Mr. Kolosha

simply reasserts, however, the claims he raised before the district court, and

argues: “Clearly these ground[s] proved ineffective assistance of counsel at

pretrial, trial, and direct appeal, which trial court and state admitted when they

ruled all claims should have been raised in direct appeal.” Aplt. Opening Br. at 6.

      With regard to a COA, Mr. Kolosha contends that he can “make a

‘substantial’ showing of the denial of more than one constitutional

right”—specifically, that he can show that: (1) “The issues are debatable among

jurist[s] as jurist[s] in 3 other federal circuits have ruled on same issues,

differently than this court has in this case”; (2) “The questions and issues on

appeal could, and do[,] present matters that deserve further proceedings, because

other federal circuits have determined they did (do) in their circuits”; and (3)

“Three (3) other federal circuit[] courts have, and could[,] resolve the issues

      2
              The court also declined to transfer the second or successive petition
to this court in the interest of justice because it concluded that there was no risk
that a meritorious successive claim would be lost.

                                           6
differently than this court did.” Appl. for COA at 1–2. In support of these

claims, Mr. Kolosha cites several habeas cases; however, most of them are either

overruled, impossible to find with the cites provided, or are district court cases

not binding on us. Moreover, he offers no analysis to support his belief that the

district court erred. 3

       In addition, on February 25, 2016, Mr. Kolosha filed a motion to stay his

appeal “to allow [the] lower court to rule” on his “Amended/Expanded and

Supplemented First 2254 Application,” which he had recently submitted to that

court. 4 Notice-&-Mot. to-Stay Appeal to Allow Lower Ct. to Rule on the

Attached 1 (filed Feb. 25, 2016). That same day, we issued an order denying Mr.

Kolosha’s motion to stay as moot because the district court had already denied his

application for an extension of time to file an amended habeas petition.

Nevertheless, on March 7, 2016, Mr. Kolosha filed a motion pursuant to Federal

Rule of Civil Procedure 60(b), asking us to reconsider our order denying his



       3
            Mr. Kolosha also asserts in his application for a COA that his many
unspecified disabilities constitute extraordinary circumstances requiring a
hearing. Mr. Kolosha cites four cases to support this proposition, but none of the
cases mention disabilities, two of them are overruled, and only one—an overruled
case—concerns AEDPA.
       4
             On February 12, 2016, Mr. Kolosha filed an “Application for
Extension of Time to File Supplemental/Amended Habeas Petition” in the district
court. The district court denied his application on February 19, 2016, finding that
Mr. Kolosha’s filing of an appeal divested the district court of control over the
matter, and reiterating that Mr. Kolosha may not file a second or successive
habeas petition without authorization. Dist. Ct. Order at 2 (dated Feb. 19, 2016).

                                          7
motion to stay. Mr. Kolosha argues that our order denying his motion to stay

erroneously assumed that the district court had denied his motion to amend his

habeas petition on the merits, when the district court had only “declin[ed]

jurisdiction to grant an exten[s]ion of time to file the amended, expanded, and

supplemented first 2254 application.” R. 60(B) Mot. 1 (filed Mar. 7, 2016) (first

emphasis added).

      Finally, on March 18, 2016, Mr. Kolosha filed a motion asking us to direct

the district court to address the merits of the claims he raised in his amended

habeas application. In this motion, Mr. Kolosha argues that he “is from a foreign

nation,” that he has “a disability impeading [sic] his ability to know, understand,

or comply with rules he does not have any assistance in understanding or

complying with,” and that the district court order prevented “this court [from]

consider[ing] the appeal of any district court order in this case.” Mot. to Direct

Lower Ct. to Address Merits of Claims Raised in Suppl./Am./Expanded 2254 First

Appl. 1, 2 (filed Mar. 18, 2016).

                                          II

                                          A

      A COA is a jurisdictional prerequisite to our adjudication of the merits of

an appeal from the district court’s denial of a petition under 28 U.S.C. § 2254.

See 28 U.S.C. § 2253(c)(1)(A); Davis v. Roberts, 425 F.3d 830, 833 (10th Cir.

2005); see also Gonzalez v. Thaler, --- U.S. ----, 132 S. Ct. 641, 649 (2012)

                                          8
(citing the “‘clear’ jurisdictional language . . . in § 2253(c)(1)”). We will not

issue a COA unless “the applicant has made a substantial showing of the denial of

a constitutional right.” Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011)

(quoting 28 U.S.C. § 2253(c)(2)). An applicant “satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003); accord Dulworth v. Jones, 496 F.3d 1133,

1136–37 (10th Cir. 2007). In addition,

             [w]hen the district court denies a habeas petition on procedural
             grounds without reaching the prisoner’s underlying constitutional
             claim, a COA should issue when the prisoner shows, at least, 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.

Harris, 642 F.3d at 906 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000));

see Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (“If the

application was denied on procedural grounds, the applicant faces a double

hurdle.”).

      The Supreme Court has instructed that the threshold determination of

whether a COA should issue “does not require full consideration of the factual or

legal bases adduced in support of the claims”—“[i]n fact, the statute forbids it.”

Miller-El, 537 U.S. at 336. Instead, the statute “requires an overview of the

                                           9
claims in the habeas petition and a general assessment of their merits”;

specifically, we must “look to the District Court’s application of AEDPA to

petitioner’s constitutional claims and ask whether that resolution was debatable

amongst jurists of reason.” Id.; see also Dockins v. Hines, 374 F.3d 935, 937

(10th Cir. 2004) (noting that the Court has made “clear” that “our COA decision

is to be based on a review of the district court’s application of AEDPA”). In

accord with Miller-El, this court has emphasized “that in determining whether to

issue a COA, a ‘full consideration of the factual or legal bases adduced in support

of the claims’ is not required.” United States v. Moya, 676 F.3d 1211, 1213 (10th

Cir. 2012) (quoting Miller-El, 537 U.S. at 336). 5

                                          B

      Pursuant to the analytical framework that the Supreme Court has

established, we have reviewed Mr. Kolosha’s opening brief, his application for a

COA, and the record. Based on our review, which includes our “general

assessment of the[ ] merits” of Mr. Kolosha’s stated grounds for relief, Miller-El,

537 U.S. at 336, we conclude that reasonable jurists would not debate the

correctness of the district court’s decisions on the merits of Mr. Kolosha’s first

three claims. We further conclude that Mr. Kolosha has not demonstrated that

      5
              Notably, this court has also emphasized that “the § 2255 motion must
‘state facts that point to a real possibility of . . . error.’” Id. (citation omitted);
see also United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (noting that
conclusory allegations alone, without supporting factual averments, are
insufficient to state a valid claim under § 2255).

                                          10
any of these claims is adequate to deserve encouragement to proceed further. In

addition, we conclude that reasonable jurists would not debate the correctness of

the district court’s decisions dismissing Mr. Kolosha’s remaining six claims on

procedural grounds. Mr. Kolosha has failed to provide any argument—much less

precedential support indicating—that the district court erred in dismissing his

claims. To the contrary, the district court’s reasoning appears thorough and, in

material respects, legally sound. Accordingly, we deny Mr. Kolosha a COA.

      Next, we deny Mr. Kolosha’s motion to direct the district court to address

the merits of the claims he raised in his “supplemental/amended/expanded 2254

application.” Mr. Kolosha does not dispute the district court’s characterization of

his motion as one brought under Federal Rule of Civil Procedure 59(e), its finding

that the motion challenged the substance of the resolution of his habeas claims

rather than some defect in the integrity of the habeas proceedings, and its

conclusion that the motion was therefore an unauthorized second or successive

petition. Mr. Kolosha also does not dispute that the district court lacks

jurisdiction to grant unauthorized second or successive petitions; thus, he has

effectively conceded that the district court lacked jurisdiction to grant his motion.

Mr. Kolosha argues instead that he “is from a foreign nation,” that he has “a

disability impeading [sic] his ability to know, understand, or comply with rules,”

and that the district court order prevented “this court [from] consider[ing] the

appeal of any district court order in this case.” Mot. to Direct Lower Ct. to

                                          11
Address Merits of Claims Raised in Suppl./Am./Expanded 2254 First Appl. 1, 2.

But these arguments are not relevant to the district court’s lack of jurisdiction, so

they cannot avail him. Accordingly, we deny his motion.

      Finally, we deny Mr. Kolosha’s motion to reconsider our order denying his

motion to stay this appeal. The sole basis of Mr. Kolosha’s motion for a stay was

“to allow [the] lower court to rule on” his application to amend his habeas

petition. Notice-&-Mot. to-Stay Appeal to Allow Lower Ct. to Rule on the

Attached 1 (filed Feb. 25, 2016). Once the district court ruled on Mr. Kolosha’s

application to amend his habeas petition—and denied it—Mr. Kolosha’s request

to stay this appeal became moot. 6 Accordingly, we deny Mr. Kolosha’s motion to

reconsider our order denying his motion for a stay.

                                          III

      Based on the foregoing, we DENY Mr. Kolosha’s request for a COA,

DENY his motion based on the district court’s refusal to address the merits of his

his amended or supplemental habeas petition, and DENY his motion to reconsider




      6
             Mr. Kolosha argues that our order denying his motion for a stay
erroneously assumed that the district court had denied his motion to amend his
habeas petition on the merits, instead of on jurisdictional grounds. But all that
matters is that the district court denied his request to amend his habeas
petition—the basis for that rejection is irrelevant to mootness.

                                          12
our order denying a stay. This matter is hereby DISMISSED.



                                    ENTERED FOR THE COURT


                                    Jerome A. Holmes
                                    Circuit Judge




                                     13
