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No. 01-6396

(Western District of Oklahoma)

(D.C. No. 01-CV-576-L)


Before KELLY, McKAY, and MURPHY, 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 case is therefore ordered submitted without oral argument.

This case is before the court on John Mahorney's requests for a certificate of appealability ("COA") and to proceed on appeal in forma pauperis. Mahorney seeks a COA so that he can appeal the district court's denial of his 28 U.S.C. § 2241 habeas petition.(1) See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a "final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court" unless the petitioner first obtains a COA); Montez v. McKinna, 208 F.2d 862, 867 (10th Cir. 2000) (holding that state prisoners proceeding under § 2241 cannot appeal adverse district court judgments without first obtaining a COA). In his petition, Mahorney asserted that the legal effect of Oklahoma's act of transferring him to a privately run prison facility was the commutation of his sentence to time served. He asserted, therefore, that he was entitled to immediate release. The district court concluded that Mahorney's claims were clearly foreclosed by binding Tenth Circuit precedent. See Montez, 208 F.3d at 865-66 & n.3 (holding that an interstate transfer to a private prison does not state a claim for relief under § 2241); Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000) ("Under Montez, the fact that an inmate is transferred to, or must reside in a private prison, simply does not raise a federal constitutional claim, though it may be raised procedurally under § 2241."). To obtain a COA, Mahorney must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He can make such a showing by demonstrating that "reasonable jurists would find the district court's assessment of [his] constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because, as noted by the district court, Mahorney's claims are clearly foreclosed by Montez and Rael, he cannot make the requisite showing. Accordingly, this court DENIES Mahorney's request for a COA, DENIES his request to proceed in forma pauperis, and DISMISSES this appeal.


Michael R. Murphy

Circuit Judge

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*. 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.

1.Although Mahorney's petition was styled as arising under 28 U.S.C. § 2254, the district court recognized that § 2241 was the proper procedural vehicle to bring the claims asserted in Mahorney's petition, see Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000), and treated the petition as arising under § 2241.

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