UNITED STATES COURT OF APPEALS TENTH CIRCUIT

NEIL ADAMS McGINNIS, Petitioner–Appellant,

v. STATE OF WYOMING, Respondent–Appellee. No. 10-8082 (D.C. No. 1:10-CV-00163-ABJ) (D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , McKAY , and LUCERO , Circuit Judges.

Neil McGinnis, a state prisoner proceed ing pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.

I McGinnis is detained in the Campbell Count y Detention Center aw aiting trial. In August 2010, he filed a pro se petition in fe deral district court titled “Petition Under 28

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### January 12, 2011

Elisabeth A. Shumaker Clerk of Court-2- U.S.C. § 2254(a)(b)(d) [sic] for Writ of Habe as Corpus by Person in State Custody.” McGinnis alleged in the petition that he was being held in pre-trial detention. He articulated numerous and sundry claims with varying degrees of clarity including, inter alia: (1) he is innocent and “falsely charge d”; (2) state and local agents have withheld “probative exculpatory ev idence”; (3) he was subjected in detention to “cruel and unusual methodical tortures” including “s exual rape” and “mail fraud”; (4) he was targeted by “21st century wave technology weaponry” wielded by “security firms & military”; and (5) he was required to undergo a mental h ealth evaluation in or der to stigmatize and

discredit him. Because McGinnis had not been convicted, the district court held that his § 2254 petition was premature, dismissed it without pr ejudice, and denied COA. The district

court also observed that to the extent McGinnis was atte mpting to raise civil rights claims, he was free to file a co mplaint under 42 U.S.C. § 1983.

II A petitioner may not appeal the denial of habeas relief under § 2254 without a COA. 28 U.S.C. § 2253(c)(1 )(A). Because the district court dismissed McGinnis’ petition on a procedural ground, McGinnis ma y not obtain a COA unless he demonstrates “that jurists of reason would find it debatable whether the pe tition states a valid claim of the denial of a constitutional right and that jurists of reason wo uld find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000).-3- We liberally construe McGinnis’ applica tion for a COA because he proceeds pro

se. See Haines v. Kerner , 404 U.S. 519, 520 (1972). However, in the context of McGinnis’ rambling and often in coherent pleadings, we empha size that “[d]espite the liberal construction afforded pro se pleading s, the court will not construct arguments or theories for the plaintiff in th e absence of any discussion of those issues.” Drake v. City

of Fort Collins , 927 F.2d 1156, 1159 (10th Cir.1991). As with his petition, McGinnis’ applic ation for COA discusses his claimed innocence and alleged mist reatment during pre-trial deten tion, including the use of “wave weaponry” against him. Without assessing the substance of McGinnis’ claims (to the extent they are intelligible ), we turn instead to pr ocedural prong of Slack . See 529 U.S. at 485 (a court may dispose of COA on procedural grounds without reaching the constitutional claim). McGinnis’ applica tion for COA is devo id of any argument addressing the procedural grounds upon whic h the district court dismissed his § 2254 petition. We conclude that the district cour t’s rulings (that McGinnis’ § 2254 petition is not cognizable pre-trial, and that he may file a suit under 42 U.S.C. § 1983 to the extent he is alleging civil rights viol ations) are not debatable. See 28 U.S.C. § 2254(a) (permitting district courts to “entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court”); McIntosh v.

U. S. Parole Comm’n , 115 F.3d 809, 811- 12 (10th Cir. 1997) (distinguishing between claims attacking “the execution of a sentence ,” properly brought unde r 28 U.S.C. § 2241, and “‘condition of confinement’ lawsuits, wh ich are brought under civil rights laws”).-4- Accordingly, McGinnis is not entitled to COA. See Slack , 529 U.S. at 484.

III For the foregoing reasons, we DENY a COA and DISMISS the appeal. Because McGinnis has not advanced a reasoned, non-frivolous argument on appeal, we also

DENY his motion to proceed in forma pauperis. See DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). We DENY all other pending motions.

Entered for the Court

Carlos Lucero Circuit Judge