UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THUAN M. NGUYEN,

Petitioner-Appellant,

v.

MARK MCKINNA, Warden at Crowley County Correctional Facility,

Respondent-Appellee.	No. 99-1408

(D.C. No. 99-Z-1474)

(Colorado)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

Thuan Nguyen, appearing pro se, appeals from the denial of his petition for habeas corpus in federal district court and seeks a certificate of appealability. He was originally incarcerated on state criminal charges in Washington state and later transferred to a private prison, the Crowley County Correctional Facility (CCCF), in Colorado. Mr. Nguyen filed a petition for habeas corpus with the Federal District Court for the District of Colorado pursuant to 28 U.S.C. § 2241, claiming that the Washington Department of Corrections lacked the authority to transfer him to the CCCF, the CCCF lacked authority to incarcerate prisoners from other states, and the transfer violated his constitutional rights. The district court construed the petition as filed under 28 U.S.C. § 2254 because it consisted of claims challenging Mr. Nguyen's custody under order of a state court, and then denied all of his claims. We review a district court's denial of a habeas corpus petition de novo. See Hawkins v. Hargett, 200 F.3d 1279, 1281 (10th Cir. 1999).

On appeal Mr. Nguyen contends the district court erred in construing his petition under section 2254. He is correct. Section 2241 is used to attack the execution of a sentence. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997). Section 2254, on the other hand, is used to attack the validity of a conviction and sentence. Id.; see also Cooper v. McKinna, No. 99-
1437, 2000 WL 123753, at *1 (10th Cir. Feb. 2, 2000). Here, as in Cooper, Mr. Nguyen does not challenge his conviction and sentence, but rather alleges that he was illegally transferred to an out-of-state private prison. Accordingly, he properly filed his petition under section 2241. See Montez v. McKinna, No. 99-1347, 2000 WL 342235, at *2 (10th Cir. April 3, 2000). We need not, however, remand for reconsideration of Mr. Nguyen's claims under section 2241.

Mr. Nguyen devotes considerable effort to the argument that his transfer from the Washington state prison system to the private Colorado facility at which he is presently incarcerated violated the laws of both states. These allegations are not cognizable in a section 2241 proceeding, which grants relief only when a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).1 We agree with the district court's adoption of Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999), in which the court stated that it could think of no provision of the "Constitution that might be violated by the decision of a state to confine a convicted prisoner in a prison owned by a private firm rather than by a government." Id. at 500; see also Karls v. Hudson, No. 99-6006, 1999 WL 314640 (10th Cir. May 19, 1999). As the court stated in Pischke, "[a] prisoner has a legally protected interest in the conduct of his keeper, but not in the keeper's identity." Id. at 500-01 (citing Olim v. Wakinekona, 461 U.S. 238 (1983)). Accordingly, Mr. Nguyen is not entitled to relief under section 2241.2

Finally, we reject Mr. Nguyen's assertion that the district court erred in denying his claim without issuing a show cause order or providing him an evidentiary hearing. Because the constitutionality of Mr. Nguyen's transfer is a purely legal matter which can be resolved on the basis of his petition, the court did not err. See United States v. Tubwell, 37 F.3d 175, 179 (5th Cir. 1994);

28 U.S.C. § 2243.

We DENY Mr. Nguyen's request for a certificate of appealability and DISMISS this appeal.3

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge