Starnes v. Williams ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 5 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL STARNES,
Petitioner-Appellant,
v. No. 00-2254
JOE WILLIAMS, Warden, Lea County (D.C. No. CIV-00-600-JP/RLP)
Correctional Facility; GARY (D.N.M.)
JOHNSON, Governor, State of New
Mexico; ROBERT PERRY, Secretary
of Corrections; NEW MEXICO
CORRECTIONS DEPARTMENT,
State of New Mexico; WACKENHUT
CORRECTIONS CORPORATION, a
Florida Corporation; LEA COUNTY,
NEW MEXICO; ATTORNEY
GENERAL FOR THE STATE OF
NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
*
This order and judgment is not binding precedent, except under the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.
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.
Michael Starnes, 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). Starnes 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 Starnes’ 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
2
S. Ct. 1595, 1603-04 (2000).
Starnes 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 Starnes 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 Starnes’ request for a certificate of appealability and DISMISS
the appeal. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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