FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 20, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RICKKE L. GREEN,
Petitioner-Appellant,
No. 05-6300
v. (Western District of Oklahoma)
(D.C. No. CIV-05-402-L)
JOHN WHETSEL, Sheriff,
Respondent-Appellee.
ORDER
Before BRISCOE, LUCERO and MURPHY, Circuit Judges.
Appellant, Rickke L. Green, filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Green, an Oklahoma state pretrial detainee,
alleged as follows: (1) the state’s prosecution of him on bail jumping charges was
a violation of the Double Jeopardy Clause; (2) the state is subjecting him to
selective prosecution in violation of the Fourteenth Amendment’s guarantee of
due process; and (3) the state is prosecuting him in retaliation for his past,
successful litigation in federal court. Green also sought an order by the district
court directing the initiation of criminal proceedings against certain state court
judges, prosecutors, and public defenders.
Green’s petition was referred to a magistrate judge for initial proceedings
pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Because Green was a pre-trial
detainee, the magistrate judge construed the petition as arising under 28 U.S.C. §
2241. See Jacobs v. McCaughtry , 251 F.3d 596, 597 (7th Cir. 2001) (explaining
that a state court defendant held pursuant to a state court judgment should file a
habeas petition under § 2254, but that a state court defendant attacking his
pretrial detention should bring a habeas petition under § 2241); Stringer v.
Williams , 161 F.3d 259, 262 (5th Cir. 1998) (same). The magistrate judge
recommended that the district court dismiss Green’s pretrial habeas application
without prejudice, concluding that abstention was appropriate based on the
doctrine enunciated in Younger v. Harris , 401 U.S. 37 (1971). The magistrate
judge also specifically noted that Green had failed to exhaust his state remedies.
See Braden v. 30th Judicial Circuit Court , 410 U.S. 484, 489-91 (1973) (holding
exhaustion requirement applies to § 2241 habeas petitions brought by pretrial
detainees). As to Green’s request that the district court order the initiation of
criminal proceedings against the identified individuals, the magistrate
recommended that the request be denied on the ground that the district court was
without power to order the United States Attorney to initiate criminal
prosecutions. See, e.g., United States v. Singleton , 165 F.3d 1297, 1300 (10th
Cir. 1999). Upon de novo review, the district court adopted the magistrate
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judge’s report and recommendation, dismissed Green’s § 2241 habeas petition
without prejudice, and denied Green’s request for an order directing the initiation
of criminal proceedings.
Green now seeks a certificate of appealability (“COA”) to enable him to
appeal the district court’s denial of his § 2241 application. See Montez v.
McKinna , 208 F.3d 862, 867 (10th Cir. 2000) (holding that state prisoners
proceeding pursuant to § 2241 must obtain a COA to appeal the denial of a habeas
petition). A COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
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). This “requires an
overview of the claims in the habeas petition and a general assessment of their
merits.” Id. at 336. Further, when the district court denies a habeas petition on
procedural grounds without reaching the applicant’s underlying constitutional
claim, a COA should issue only when the applicant 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
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whether the district court was correct in its procedural ruling. Slack v. McDaniel ,
529 U.S. 473, 484 (2000) .
This court has reviewed Green’s application for a COA and appellate brief,
the district court’s order, the magistrate judge’s report and recommendation, and
the entire record on appeal pursuant to the framework set out by the Supreme
Court in Miller-El and concludes that Green is not entitled to a COA. The district
court’s resolution of Green’s claims is not reasonably subject to debate and the
claims are not adequate to deserve further proceedings. Accordingly, Green has
not “made a substantial showing of the denial of a constitutional right” and is not
entitled to a COA. 28 U.S.C. § 2253(c)(2).
This court DENIES Green’s request for a COA and DISMISSES this
appeal. Green’s motion to proceed in forma pauperis on appeal is GRANTED .
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
By
Deputy Clerk
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