                                                                       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

 WESLEY MAXWELL,

          Petitioner-Appellant,
 v.                                                    No. 00-2193
 JOE WILLIAMS, Warden, Lea County             (D.C. No. CIV-00-582-JP/LFG)
 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.




      *
       This order and judgment is not binding precedent, except under the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.
      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.

      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


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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
                                               Circuit Judge



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