UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DALE JUSTIN HUDDLESTON, Petitioner - Appellant,

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

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , MATHESON , and BACHARACH , Circuit Judges.

________________ _________________ Dale Huddleston seeks a certificate of appealability (“COA” ) to appeal the district court’s dism issal of his 28 U.S.C. § 22 41 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* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 5, 2016 Elisabeth A. Shumaker Clerk of Court2 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 de nied, and Huddleston vo luntarily dismissed his appeal from that order. Huddleston later filed a § 2254 petition challenging his conviction in 2007. This petiti on was dismissed as time-barred. In 2006, while on parole, Huddleston pl ed guilty to aggravated robbery and second degree kidnapping in Colorado state c ourt. 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 As a result of his guilty plea, Huddleston’s parole from his 1999 convi ction was revoked. In 2009, he filed a motion in state court seeking to credit 281 da ys of pre-trial confinement toward his 2006 sentence. That motion was denied on the basis that H uddleston’s pre-trial confinement time was properly cr edited to his 1999 sentence. On December 30, 2015, Huddleston filed a habeas petition in federal district court. In an amended petition, he asse rted three claims: (1) he was unlawfully subjected to mandatory parole for his 1999 conviction; (2) he wa s wrongfully denied pre-trial credit toward his 200 6 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 (1 0th Cir. 2000). We will issue a COA only if Huddleston demons trates “that reasonable jurists could3 debate whether (or, for that matter, agree that) the petiti on should have been resolved in a different manner or th at the issues presented we re adequate to deserve encouragement to proceed fu rther.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). The district court properly dismissed H uddleston’s first clai m, in which he argues that the trial court wrongly sentence d 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 sent ence.” 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 10208 47, 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 Huddles ton has already challenged his 1999 conviction in a § 2254 petition, the district court lacked jurisdiction to consider Huddleston’s claim abse nt prior authorization from th is 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 limi tations period. Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006). To be time ly 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 discovere d through the exercise of due diligence.”4 § 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 prov ide any argument warranting statutory or equitable tolling, his cl aim is time -barred. The district court dismissed Huddlest on’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 petitione r “failed to addr ess 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 pauperi s.

Entered for the Court

Carlos F. Lucero Circuit Judge