                                                                        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



 DANIEL GOMEZ,

          Petitioner-Appellant,

 v.

 JOE WILLIAMS, Warden, Lea County
 Correctional Facility; GARY
 JOHNSON, Governor, State of New                       No. 00-2222
 Mexico; ROBERT PERRY, Secretary             (D.C. No. CIV-00-763-LH/KBM)
 of Corrections; NEW MEXICO                           (New Mexico)
 CORRECTIONS DEPARTMENT;
 WACKENHUT CORRECTIONS
 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judgment is not binding precedent, except under the doctrines of law of the case,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.



      Daniel Gomez, a state prisoner proceeding pro se, seeks to appeal the

district court’s denial of his habeas corpus petition. Mr. Gomez is currently

incarcerated in the Lea County Correctional Facility (LCCF), a private

correctional facility in New Mexico. He filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2241 challenging his transfer to, and incarceration in,

the LCCF. Mr. Gomez claims his incarceration in a private facility violates

various state laws as well as his rights under the First, Eighth, and Fourteenth

Amendments to the United States Constitution. 1

      Respondent Wackenhut Corrections Corporation (Wackenhut) operates the

LCCF under a contract with Respondent Lea County, New Mexico. Mr. Gomez

alleges that the contract between the New Mexico Corrections Department and

Lea County, as well as the contract between Lea County and Wackenhut, violates

state law and his constitutional rights to due process, equal protection, and to be

free from cruel and unusual punishment. Mr. Gomez also alleges that the terms



      1
        Because the 2241 petition in this case is nearly identical to those filed in
Keck v. Williams, No. 00-2192, 2000 WL 1089503 (10th Cir. Aug. 4, 2000); Wolf
v. Williams, No. 00-2127, 2000 WL 1089501 (10th Cir. Aug. 4, 2000); Ayon v.
Williams, No. 00-2161, 2000 WL 1089499 (10th Cir. Aug. 4, 2000); Seifert v.
Williams, No. 00-2146, 2000 WL 1089496 (10th Cir. Aug. 4, 2000), our order and
judgments in those cases are virtually identical to this one.

                                         -2-
of the contracts violate his constitutional rights by providing Lea County with an

incentive to provide poor conditions and deny Mr. Gomez good time credits.

Further, Mr. Gomez alleges that Wackenhut has detained his “class members”

past their release dates in an effort to increase profits under the contract.

According to Mr. Gomez, Lea County has breached the contracts by failing to

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

of properly trained and adequately experienced staff.

      In his section 2241 petition, Mr. Gomez raises various additional state law

claims. He claims that Respondents violated state law by failing to ensure LCCF

met or exceeded corrections department standards. Further, Mr. Gomez claims

that the contracts violate state law because Lea County is not in the business of

providing correctional jail services as contemplated by state law. Finally, he

claims Respondents’ conduct constitutes fraud, deceptive trade practices, and a

pattern of racketeering, all in violation of state law.

      A magistrate judge sua sponte issued an order to show cause why the

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

response, Mr. Gomez claimed that exhaustion was not required because he “has

raised claims implicating important state interests.” He also contended that the

state waived the exhaustion requirement. Finally, Mr. Gomez argued that he

would be prejudiced by exhaustion due to undue delay and futility in the state


                                           -3-
court proceedings. After considering Mr. Gomez’s objections, the district court

dismissed the petition without prejudice for failure to exhaust. The district court

subsequently denied Mr. Gomez’s application for a certificate of appealability

(COA). This appeal and application for COA followed. We deny Mr. Gomez’s

application and dismiss his appeal.

      A state prisoner may appeal the denial of a section 2241 petition only if “a

circuit justice or judge” issues a COA. 28 U.S.C. § 2253(c)(1)(A); Montez v.

McKinna, 208 F.3d 862, 867 (10th Cir.2000) (holding that a state prisoner must

obtain a COA to appeal the denial of a section 2241 petition). To obtain a COA

under section 2253(c), a habeas prisoner must make a “substantial showing of the

denial of a constitutional right.” § 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 S.Ct. 1595,

1603-04 (2000). We conclude Mr. Gomez has failed to make the required

showing.

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

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

extent Mr. Gomez 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 Montez, 208 F.3d at 865-66; accord Rael v. Williams,


                                         -4-
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). 2 Finally, to the extent Mr. Gomez raises cognizable federal

constitutional claims, the district court properly 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 a federal court 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. Gomez’s motion for COA and DISMISS his

appeal. 3

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




       We note that the district court did not have the benefit of our decision in
       2

Rael, which we decided after the district court dismissed the petition.

       See Hogan v. Zavaras, 93 F.3d 711, 712 (10th Cir. 1996) (denying COA
       3

and dismissing appeal of district court’s denial of section 2241 petition for failure
to exhaust).

                                          -5-
