F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            APR 20 2001
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 KAI CHRISTOPHER CHRISTMAN,
             Petitioner-Appellant,                      No. 00-1439
 v.                                                (D.C. No. 00-K-1440)
 JOHN W. SUTHERS, Ex. Dir. D.O.C.;                       (D. Colo.)
 ROBERT W. FURLONG; and
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,
             Respondents-Appellees.


                          ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Petitioner was serving an indeterminate sentence in the Colorado penal

system when he escaped from the Colorado State Hospital. While on the lam, he


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
was convicted of child molestation in California, where he served time and was

later paroled. California then returned him to the custody of the Colorado

Department of Corrections. Petitioner filed a habeas corpus petition with the

federal district court of Colorado, arguing that Colorado has no authority to

further incarcerate him in light of a “discharge” letter he had received from the

Colorado State Hospital at some point after his escape. The court denied the

habeas petition and Petitioner’s subsequent requests for a certificate of

appealability and leave to proceed in forma pauperis on appeal. Petitioner

appeals all three district court orders.

      Throughout these proceedings, Petitioner’s claims appear to have been

treated as though brought under 28 U.S.C. § 2254. Given the nature of his

claims, however, we note that, technically, they should have proceeded under 28

U.S.C. § 2241 as an attack on the execution of his sentence. See Montez v.

McKinna, 

, 865 (10th Cir. 2000). Either way, the consequences are

the same in the instant case: Petitioner must obtain a certificate of appealability

prior to being heard on appeal. See 

A court will issue a certificate

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner could do so by

demonstrating that his claims warrant further proceedings, “subject to a different

resolution on appeal,” or are debatable among reasonable jurists. Montez, 208


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F.3d at 869. We agree with the district court that Petitioner has failed to make

the necessary showing. Accordingly, we DENY Petitioner’s request for a

certificate of appealability and DISMISS his habeas appeal. Petitioner’s

application to proceed in forma pauperis is DENIED.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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