|JOE WILLIAMS, Warden, Lea County
Correctional Facility; GARY
JOHNSON, Governor, State of New
Mexico; ROBERT PERRY, Secretary
of Corrections; NEW MEXICO
State of New Mexico; WACKENHUT
CORRECTIONS CORPORATION, a
Florida Corporation; LEA COUNTY,
New Mexico; ATTORNEY GENERAL
FOR THE STATE OF NEW MEXICO,
Wesley Maxwell, a state inmate appearing pro se and in forma pauperis, seeks a certificate of appealability to appeal the district court's dismissal of his habeas corpus action. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, deny a certificate of appealability, and dismiss the appeal.
The facts and issues in this case are identical to those in Rael v. Williams, 2000 WL 1051845 (10th Cir. July 31, 2000). Maxwell filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging, on federal constitutional and state law grounds, his transfer to and incarceration in a privately-run prison facility in Lea County, New Mexico. The district court dismissed the petition without prejudice due to Maxwell's failure to exhaust state court remedies.
A state prisoner may appeal the denial of a § 2241 petition only if "a circuit justice or judge" issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). To obtain a certificate of appealability under § 2253(c), a habeas prisoner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This showing requires a demonstration that reasonable jurists could debate whether the petition should have been resolved in a different manner. Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000).
Maxwell has failed to make this showing. First, his state law claims are not cognizable in a federal habeas action. See 28 U.S.C. § 2241(c)(3); Rael, 2000 WL 1051845 at *1; Montez, 208 F.3d at 865. To the extent he challenges his transfer per se to a private facility or his placement in the facility pursuant to contract, such a claim is not cognizable under section 2241. See Rael, 2000 WL 1051845, at *1; Montez, 208 F.3d at 865-66. Finally, even if Maxwell raises cognizable federal constitutional claims, the district court properly dismissed his petition without prejudice for failure to exhaust. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."); accord Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999).
We DENY Maxwell's request for a certificate of appealability and DISMISS the appeal. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
*.This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.