UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JAMES SARDAKOWSKI, 

 Petitioner - Appellant, 

v. 

MIKE REMARO, 

 Respondent - Appellee. 

No. 17-1443 

(D.C. No. 1:17-CV-01905-LTB) 

(D. Colo.) 

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ORDER DENYING CERTIFICATE OF APPEALABILITY

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Before LUCERO, HARTZ, and McHUGH, Circuit Judges. 

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 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). 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 7, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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