                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                            August 29, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MARIO AKOTHE,

      Petitioner - Appellant,

v.                                                         No. 18-6036
                                                    (D.C. No. 5:18-CV-00054-D)
WARDEN BEAR; STATE OF                                      (W.D. Okla.)
OKLAHOMA,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.
                   _________________________________

      Mario Akothe, a state prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to challenge the district court’s dismissal of his 28 U.S.C.

§ 2241 petition. He also moves to proceed in forma pauperis (IFP). We deny Akothe

a COA and deny his IFP motion.



      *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        We construe a pro se appellant’s complaint liberally. Gaines v. Stenseng, 292
F.3d 1222, 1224 (10th Cir. 2002). But this liberal treatment has limits. Though we
can make allowances for “the [pro se] plaintiff’s failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and sentence construction, or
his unfamiliarity with pleading requirements,” we can’t serve as his advocate. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
                                   BACKGROUND

       On January 19, 2018, Akothe, an Oklahoma state prisoner, filed a 28 U.S.C.

§ 2241 petition. In his petition, he made two claims: (1) that he’s “an Indian” being

detained for a crime he committed against “an Indian, in Indian Country, on Indian

Land, inside an Indian Reservation,” so his state charges, conviction and detention by

Oklahoma authorities are illegal, R. at 9; and (2) that Oklahoma courts “refuse to

enforce U.S. Supreme Court opinions, have suspended habeas-corpus, due process,

equal protection of laws, access to courts,” and have transgressed the terms of

Oklahoma’s statehood charter, id. at 10.

       He also moved to proceed IFP. At the time, Akothe’s inmate-savings account

balance exceeded the required $5 filing fee. So the magistrate judge recommended

that the district court deny Akothe’s IFP motion. Soon after, Akothe paid the $5

filing fee.

       On February 9, 2018, the magistrate judge issued an order recommending

dismissal of Akothe’s petition. The magistrate judge concluded that Akothe’s

arguments challenged the fact of his confinement, rather than its nature. And the

magistrate judge declined to construe Akothe’s claims as a § 2254 petition, warning

of unintended consequences if the district court should do so. Akothe objected,

reiterating his two claims.

       On February 21, 2018, the district court agreed with the magistrate judge and

adopted his recommendation. The district court determined that Akothe’s claims

failed to attack the execution of his sentence as required to state a claim under

                                           2
§ 2241, and declined to recast his petition as arising under § 2254. Akothe moved to

proceed IFP on appeal, but the district court certified that any appeal wouldn’t be

taken in good faith, so the court denied his motion.

                                     DISCUSSION

       Before Akothe’s appeal may proceed, he must obtain a COA. Montez v.

McKinna, 208 F.3d 862, 867 (10th Cir. 2000). To do so, Akothe must make “a

substantial showing of the denial of a constitutional right.” Id. at 869 (quoting 28

U.S.C. § 2253(c)(2)). Such a showing is made where the petitioner demonstrates that

the issue “he seeks to raise on appeal [is] deserving of further proceedings, subject to

a different resolution on appeal, or reasonably debatable among jurists of reason.” Id.

       Here, the district court dismissed both of Akothe’s claims for failure to state a

claim because neither claim attacked “the execution of his sentence or the nature of

his confinement.” R. at 20; see id. at 31 (adopting magistrate’s report and

recommendation). Section 2241 petitions are “generally reserved for complaints

about the nature of a prisoner’s confinement, not the fact of his confinement.” Prost

v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011). Claims that touch the nature of

confinement include “matters that occur at prison, such as deprivation of good-time

credits and other prison disciplinary matters . . . affecting the fact or duration of the

[prisoner’s] custody.” Hale v. Fox, 829 F.3d 1162, 1165 n.2 (10th Cir. 2016)

(alteration in original) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,

811–12 (10th Cir. 1997)). So the question for us is whether Akothe stated claims

attacking the nature of his confinement.

                                             3
      We conclude that he didn’t. Claims that Oklahoma illegally indicted and

detained him in violation of a treaty challenge his confinement but not its nature.

Martin v. Oklahoma, No. 18-6068, 2018 WL 3854956, at *1 (10th Cir. Aug. 14,

2018). And his claims that the Oklahoma courts “refuse to enforce U.S. Supreme

Court opinions, have suspended habeas-corpus, due process, equal protection of laws,

access to courts,” R. at 10, similarly challenge his confinement but not its nature. See

Hayes v. Bear, No. 18-6048, 2018 WL 3199231, at *1 (10th Cir. June 28, 2018). So

the district court’s disposition of Akothe’s petition isn’t debatable, and we decline to

issue Akothe a COA.2

      Akothe moves to proceed IFP. To do so he must demonstrate (1) a financial

inability to prepay the required appellate filing fee, and (2) that he has forwarded a

“reasoned, nonfrivolous argument on the law and facts in support” of his appeal.

McIntosh, 115 F.3d at 812–13 (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505

(10th Cir. 1991)). We’ve reviewed Akothe’s financial materials and conclude he

lacks the financial ability to prepay the filing fee. But because he simply restates his

arguments before the district court and fails to present a reasoned argument as to how

the district court erred, we conclude his appeal is frivolous. So we deny his motion to

proceed IFP.




      2
       We decline to construe Akothe’s claims as a § 2254 petition. See Davis v.
Roberts, 425 F.3d 830, 834–35 (10th Cir. 2005) (noting the potential prejudicial
impacts to petitioner should the court construe a § 2241 petition as a § 2254 petition).
                                            4
                           CONCLUSION


We decline to issue Akothe a COA and deny his motion to proceed IFP.

                                   Entered for the Court


                                   Gregory A. Phillips
                                   Circuit Judge




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