                                                                          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


                                            -2-
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




                                             -3-
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




                                             -4-
