                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          SEP 13 2000

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk



 MARTIN EDWARD CAMPBELL,

          Petitioner-Appellant,

 v.

 JOE WILLIAMS, Warden, Lea County
 Correctional Facility; GARY
 JOHNSON, Governor, State of New
                                                   No. 00-2126, 00-2181
 Mexico; ROBERT PERRY, Secretary
                                              (D.C. No. CIV-00-189-BB/LFG)
 of Corrections; NEW MEXICO
                                                      (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 *


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


      Martin Edward Campbell appeals the dismissal, without prejudice, of his

habeas corpus action brought pursuant to 28 U.S.C. § 2241 for failure to exhaust

state court remedies.

      Mr. Campbell challenges his incarceration in the Lea County Correctional

Facility (LCCF), a privately-run prison facility in New Mexico, on the grounds

that it violates both state law and his constitutional rights. Mr. Campbell claims

he is a third-party beneficiary of the contract between the New Mexico

Corrections Department (NMCD) and Lea County, as well as the contract between

Lea County and Wackenhut Corrections Corporation (Wackenhut), the company

that operates LCCF. He maintains his constitutional rights have been violated

because Lea County and Wackenhut have breached these contracts by failing to

ensure the proper classification of inmates and failing to provide a sufficient

number of properly trained and adequately experienced staff. Mr. Campbell

alleges that the Defendants, Governor Gary Johnson, Secretary of Corrections

Robert Perry, and the NMCD, therefore violated the terms of N.M. Stat. Ann. §

31-20-2(G) by failing to adequately comply with NMCD standards for housing

inmates at LCCF. As a result, he alleges that he has suffered unspecified, but

serious and irreparable harm. Finally, Mr. Campbell claims that Lea County is


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not “in the business of providing correctional or jail services to government

entities.” Thus, he believes the Lea County contract to provide such services

violates N.M. Stat. Ann. § 33-1-17(B) and also infringes upon his rights under the

First, Eighth, and Fourteenth Amendments of the United States Constitution.

      Mr. Campbell filed a pro se petition in the New Mexico district court for

writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking an order vacating his

conviction and sentence and granting his unconditional release. The magistrate

judge issued a sua sponte show cause order for Mr. Campbell to explain why the

petition should not be dismissed for failure to exhaust state remedies. After

consideration of Mr. Campbell’s response to the show cause order, the district

court dismissed the petition without prejudice. Mr. Campbell appealed. The

district court subsequently denied his application to proceed in forma pauperis on

appeal, and he appealed that order as well. He also seeks a certificate of

appealability pursuant to 28 U.S.C. § 2253(c). 1

      In Montez v. McKinna, 208 F.3d 862, 864-65 (10th Cir. 2000), this court

held that a habeas petition challenging a transfer to a privately run prison may be

cognizable under § 2241. We made clear that a state habeas petitioner is



      1
       The petition and appeals in this case were filed subsequent to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore,
AEDPA applies and Mr. Campbell must obtain a certificate of appealability in
order to proceed on appeal.

                                         -3-
generally required to exhaust state remedies when his action is brought under §

2241. See id. at 866. 2 We also held that a certificate of appealability is required

for a § 2241 appeal. See id. at 866-69. To obtain a certificate of appealability, a

habeas petitioner must make a substantial showing of the denial of a

constitutional right. See 18 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. See Slack v. McDaniel, 120 S. Ct.

1595, 1603-04 (2000). We conclude Mr. Campbell has failed to make this

showing.

      First, Mr. Campbell’s state law claims are not cognizable in a federal

habeas actions. See 28 U.S.C. § 2241(c)(3); Montez, 208 F.3d at 865. Further, to

the extent Mr. Campbell challenges his transfer per se to a private facility

pursuant to contract, such a claim is not cognizable under § 2241. See id. at 865-

66; accord Rael v. Williams, No. 00-2145, 2000 WL 1051845 (10th Cir. July 31,

2000) (fact that inmate is transferred to, or must reside in, a private prison does

not raise a federal constitutional claim). 3 Finally, to the extent Mr. Campbell

raises cognizable federal constitutional claims, the district court properly

      2
        The prisoner in that case had failed to exhaust his state remedies, but we
nevertheless rejected his challenge on the merits, relying upon 28 U.S.C. §
2254(b)(2) as analogous authority.
      3
       We note that the district court did not have the benefit of our decisions in
Montez and Rael, which we decided after the district court dismissed the petition.

                                         -4-
dismissed his petition without prejudice for failure to exhaust. “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 the

federal courts in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842

(1999); accord Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999).

      Accordingly, we DENY Mr. Campbell’s request for a certificate of

appealability and DISMISS this appeal. Mr. Campbell’s application to proceed on

appeal in forma pauperis is DENIED.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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