                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 28, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 ROBERT JOSEPH ZANI,

          Petitioner-Appellant,

 v.
                                                        No. 09-4107
 U.S. MARSHALS; SALT LAKE
                                                         (D. Utah)
 CITY; TEXAS BOARD OF
                                                  (D.C. No. 2:09-cv-00042)
 CRIMINAL JUSTICE,

          Respondents-Appellees.




            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Petitioner Robert Joseph Zani, a state prisoner currently incarcerated in

Tennessee Colony, Texas, applies for a certificate of appealability (“COA”) to

challenge the district court’s dismissal of his 28 U.S.C. § 2241 petition for lack of



      *
          This Order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. After
examining the appellate record, this three-judge panel determined unanimously
that oral argument would not be of material assistance in the determination of this
matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
jurisdiction. For the reasons stated below, we deny a COA, and dismiss the

appeal.

      While incarcerated in Texas, Mr. Zani filed a pro se 1 application for writ of

habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for

the District of Utah. The district court dismissed his petition, holding that the

court lacked jurisdiction because Mr. Zani was incarcerated in Texas and his

§ 2241 petition was properly filed in the federal judicial district of Mr. Zani’s

incarceration. The court dismissed the petition without prejudice so as to not

prevent Mr. Zani from filing his petition in a court of competent jurisdiction. The

court chose to dismiss the petition rather than to transfer it pursuant to 28 U.S.C.

§ 1641, finding that a “quick review of the merits reveals that Petitioner’s claims

are very likely doomed as fantastic and possibly delusional.” R., Vol. I, Doc. 5,

at 2 (Mem. Decision, dated May 15, 2009).

      Because the district court dismissed Mr. Zani’s habeas petition without

granting him a COA, Mr. Zani may not appeal the district court’s order absent a

grant of a COA by this court. 2 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna,

208 F.3d 862, 869 (10th Cir. 2000) (holding that § 2253(c)(1)(A) applies when a



      1
             Because Mr. Zani proceeds pro se, we liberally construe his filings,
including his application for a COA. See Van Deelen v. Johnson, 497 F.3d 1151,
1153 n.1 (10th Cir. 2007).
      2
             The district court did not act on Mr. Zani’s request for a COA, but
pursuant to Tenth Circuit Rule 22.1(C), that inaction is deemed to be a denial.

                                         -2-
state habeas petitioner proceeds under § 2241); see also Clark v. Oklahoma, 468

F.3d 711, 713 (10th Cir. 2006) (“A COA is a jurisdictional pre-requisite to our

review.” (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003))). To obtain a

COA, Mr. Zani must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). When the district court denies a habeas petition

on procedural grounds, a petitioner is not entitled to a COA unless he can show

both that “jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).

      “‘A petition under 28 U.S.C. § 2241 attacks the execution of a sentence

rather than its validity and must be filed in the district where the prisoner is

confined.’” Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000) (quoting

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)). As the district court

found, Mr. Zani is in state custody in Tennessee Colony, Texas. Thus, reasonable

jurists could not debate the district court’s conclusion that it lacked jurisdiction to

consider the merits of his petition.

      Although jurisdictional defects that arise from a suit being filed in the

wrong federal district may be remedied by transfer pursuant to 28 U.S.C. § 1631,

such transfer is appropriate only “if it is in the interest of justice.” 28 U.S.C.

§ 1631; see Trujillo v. Williams, 465 F.3d 1210, 1222 (10th Cir. 2006) (“Although


                                          -3-
. . . § 1631 contain[s] the word ‘shall,’ we have interpreted the phrase ‘if it is in

the interest of justice’ to grant the district court discretion in making a decision to

transfer an action . . . .”). It does not appear that Mr. Zani argues on appeal that

the district court should have transferred this matter instead of dismissing it.

Rather, Mr. Zani’s position seems to be that state officials where he is

incarcerated (i.e., Texas) are acting as a proxy for the United States Marshals

Service, located in Utah; therefore, jurisdiction is proper in Utah. 3

      Even if Mr. Zani’s filings could be read to include an objection to the

district court’s decision not to transfer the case, we would conclude for at least

two reasons that reasonable jurists could not debate that the district court did not

abuse its discretion in declining to transfer the case. First, “a court is authorized

to consider the consequences of a transfer by taking a peek at the merits to avoid

raising false hopes and wasting judicial resources that would result from

transferring a case which is clearly doomed.” Haugh, 210 F.3d at 1150 (internal

quotation marks omitted). We agree with the district court’s assessment of the

merits of Mr. Zani’s petition as being clearly doomed and therefore inappropriate

for transfer.

      Second, “[w]e have previously recognized the broad support that exists for

the proposition that ‘it is not in the interest of justice to transfer where a plaintiff



      3
               Mr. Zani offers not a shred of evidence or even a detailed argument
to support this bald allegation, however.

                                           -4-
either realized or should have realized that the forum in which he or she filed was

improper.’” Kelso v. Luna, 317 Fed. App’x 846, 848 (10th Cir. 2009) (quoting

Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1544 (10th Cir.

1996)). As in Kelso, Mr. Zani should have realized that Utah was an improper

forum because we have had occasion to put him on notice that such

geographically misdirected § 2241 filings are improper. Specifically, Mr. Zani

previously filed a § 2241 petition in the District of Colorado and this court

concluded that the district court lacked jurisdiction over that petition because Mr.

Zani was not incarcerated in Colorado but rather in Texas (as now) and the

federal judicial district encompassing his place of incarceration was the proper

filing location. See Zani v. U.S. Marshals Serv., No. 09-1110, 2009 WL 2197343,

at *1 & n.2 (10th Cir. July 24, 2009); cf. Kelso, 317 Fed. App’x at 848.

Accordingly, Mr. Zani should have known that filing in the District of Utah was

improper, and this circumstance strongly suggests that a transfer was

inappropriate. In any event, given this circumstance, we would be hard-pressed

to conclude that reasonable jurists could debate whether the district court abused

its discretion in electing not to grant a transfer.

      For the foregoing reasons, we DENY a COA and DISMISS the appeal.

                                  ENTERED FOR THE COURT


                                  Jerome A. Holmes
                                  Circuit Judge


                                           -5-
