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

                            FOR THE TENTH CIRCUIT                         December 5, 2016
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DALE JUSTIN HUDDLESTON,

      Petitioner - Appellant,

v.                                                         No. 16-1293
                                                  (D.C. No. 1:15-CV-02848-LTB)
CYNTHIA COFFMAN, Colorado                                    (D. Colo.)
Attorney General; COLORADO PAROLE
BOARD; COLORADO DEPARTMENT
OF CORRECTIONS; JASON
LENGERICH, Warden of Buena Vista
Correctional Facility,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Dale Huddleston seeks a certificate of appealability (“COA”) to appeal the

district court’s dismissal of his 28 U.S.C. § 2241 petition. We deny a COA and

dismiss the appeal.

                                           I

      In 1999, Huddleston was convicted in Colorado state court of first degree

sexual assault and second degree burglary. He was sentenced to eight years’


      *
         This order is not binding precedent, except under the doctrines of law of the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.
imprisonment and five years of mandatory parole. In November 2002, Huddleston

filed a state petition for post-conviction relief, arguing that he should not be subject

to mandatory parole. His petition was denied, and Huddleston voluntarily dismissed

his appeal from that order. Huddleston later filed a § 2254 petition challenging his

conviction in 2007. This petition was dismissed as time-barred.

      In 2006, while on parole, Huddleston pled guilty to aggravated robbery and

second degree kidnapping in Colorado state court. He was sentenced to sixteen

years’ imprisonment and five years of mandatory parole. As a result of his guilty

plea, Huddleston’s parole from his 1999 conviction was revoked. In 2009, he filed a

motion in state court seeking to credit 281 days of pre-trial confinement toward his

2006 sentence. That motion was denied on the basis that Huddleston’s pre-trial

confinement time was properly credited to his 1999 sentence.

      On December 30, 2015, Huddleston filed a habeas petition in federal district

court. In an amended petition, he asserted three claims: (1) he was unlawfully

subjected to mandatory parole for his 1999 conviction; (2) he was wrongfully denied

pre-trial credit toward his 2006 conviction; and (3) he is being denied sex-offender

and medical treatment. The district court dismissed his petition and declined to grant

a COA. Huddleston now seeks a COA from this court.

                                            II

      A state prisoner may not appeal the denial of habeas relief under § 2241

without a COA. See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). We

will issue a COA only if Huddleston demonstrates “that reasonable jurists could

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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 (2000)

(quotations omitted).

      The district court properly dismissed Huddleston’s first claim, in which he

argues that the trial court wrongly sentenced him to a mandatory term of parole for

his 1999 conviction. Such a claim must be pursued under § 2254 because it

challenges “the validity” rather than “the execution of a sentence.” McIntosh v. U.S.

Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997); see also Ayala v. Dep’t of Corr.,

No. 99-1401, 1999 WL 1020847, at *1, 198 F.3d 257 (10th Cir. Nov. 10, 1999)

(unpublished table opinion) (attack on “the validity ab initio of [a] mandatory

[parole] term” sounds in § 2254). And because Huddleston has already challenged

his 1999 conviction in a § 2254 petition, the district court lacked jurisdiction to

consider Huddleston’s claim absent prior authorization from this court. In re Cline,

531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam).

      In his second claim, Huddleston argues he was improperly denied pre-sentence

credit toward his 2006 conviction. This claim may be pursued under § 2241 because

it attacks the execution of his sentence. McIntosh, 115 F.3d at 811-12. However,

§ 2241 petitions are subject to a one-year limitations period. Dulworth v. Evans, 442

F.3d 1265, 1268 (10th Cir. 2006). To be timely in this case, Huddleston had to file

his petition within one year of “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due diligence.”

                                            3
§ 2244(d)(1)(D). Huddleston was aware of the factual circumstances underlying his

claim by at least 2009, when he filed a state court motion seeking the same

application of pre-trial credit. Because he waited more than one year to assert his

claim in federal court and does not provide any argument warranting statutory or

equitable tolling, his claim is time-barred.

      The district court dismissed Huddleston’s third claim, which concerns the

denial of sex-offender and medical treatment, as not cognizable in habeas.

Huddleston does not address this claim in his combined application for a COA and

opening brief and has thus waived it. See United States v. Springfield, 337 F.3d

1175, 1178 (10th Cir. 2003) (claim waived if petitioner “failed to address that claim

in either his application for a COA or his brief on appeal”).

                                           III

      For the foregoing reasons, we DENY a COA and DISMISS the appeal. We

GRANT Huddleston’s motion to proceed in forma pauperis.




                                               Entered for the Court


                                               Carlos F. Lucero
                                               Circuit Judge




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