                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 4 2000
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 JAMES KECK,

          Petitioner-Appellant,
 v.                                                     No. 00-2192
 JOE WILLIAMS, Warden, Lea County             (D.C. No. CIV-00-630-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 BALDOCK, HENRY, and LUCERO, 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        This order and judgment is not binding precedent, except under the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, the panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R.
      Petitioner James Keck, a state prisoner proceeding pro se, seeks to appeal

the district court’s denial of his habeas corpus petition. Incarcerated in a private

correctional facility in New Mexico, Petitioner filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2241. In his petition, Petitioner challenged his transfer

to, and incarceration in, a private facility. As best as we can discern from his

rambling petition, Petitioner 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 operates the Lea County

Correctional Facility (LCCF) under a contract with Respondent Lea County, New

Mexico. Petitioner 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. Petitioner also

alleges that the terms of the contracts violate his constitutional rights by


34.1(G). The case is therefore ordered submitted without oral argument.
      1
           Because the § 2241 petition in this case is nearly identical to those filed
in Wolf v. Williams , No. 00-2127 (10th Cir., filed April 17, 2000),    Seifert v.
Williams , No. 00-2146 (10th Cir., filed May 1, 2000),     Ayon v. Williams , No. 00-
2161 (10th Cir., filed May 16, 2000),    Martinez v. Williams , No. 00-2169 (10th
Cir., filed May 22, 2000), our order and judgments in those cases are virtually
identical to this one.

                                          -2-
providing Lea County with an incentive to provide poor conditions and deny

Petitioner good time credits. Further, Petitioner alleges that Wackenhut has

detained Petitioner’s “class members” past their release dates in an effort to

increase profits under the contract. According to Petitioner, 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 § 2241 petition, Petitioner 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, Petitioner 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, Petitioner 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, Petitioner claimed that exhaustion was not required because “Petitioner

has raised claims implicating important state interests.” Petitioner further

claimed that the state waived the exhaustion requirement. Finally, Petitioner

claimed that he would be prejudiced by exhaustion due to undue delay and futility


                                           -3-
in the state court proceedings. After considering Petitioner’s objections, the

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

district court subsequently denied Petitioner’s application for a certificate of

appealability, noting that Petitioner failed to make the required showing under 28

U.S.C. § 2253(c)(2). We deny Petitioner’s application for a certificate of

appealability as well, and dismiss his appeal.

      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) (holding that a state

prisoner must obtain a certificate of appealability to appeal the denial of a § 2241

petition). To obtain a certificate of appealability under § 2253(c), a habeas

prisoner must make a substantial showing of the denial of a constitutional right.

Id. § 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

Petitioner has failed to make the required showing.

      First, Petitioner’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 Petitioner challenges his transfer per se to a private facility or his

placement in the facility pursuant to contract, such a claim is not cognizable


                                           -4-
under § 2241. See Montez, 208 F.3d at 865-66; accord Rael v. Williams, __ F.3d

__, __, 2000 WL 1050091 (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 Petitioner 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).

      MOTION DENIED; APPEAL DISMISSED. 3

                                        Entered for the Court,



                                        Bobby R. Baldock
                                        Circuit Judge




      2
         We note that the district court did not have the benefit of our decision in
Rael , which we decided after the district court dismissed the petition.
      3
        See Hogan v. Zavaras , 93 F.3d 711, 712 (10th Cir. 1996)    (denying COA
and dismissing appeal of district court’s denial of § 2241 petition for failure to
exhaust).

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