                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               DEC 1 2000
                                     TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 PAUL L. DAVIS,

          Petitioner - Appellant,
 v.

 JOE WILLIAMS, Warden, Lea County
 Correctional Facility; GARY JOHNSON,
 Governor, State of New Mexico;
                                                             No. 00-2250
 ROBERT PERRY, Secretary of
                                                   (D.C. No. CIV-00-198-LH/DJS)
 Corrections; NEW MEXICO
                                                      (District of New Mexico)
 CORRECTIONS DEPARTMENT;
 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.



      Phil Davis, appearing pro se, seeks a certificate of appealability (“COA”) pursuant


      *
          The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
to 28 U.S.C. § 2253(c) to challenge the district court’s denial of his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241. While incarcerated in a private correctional

facility in New Mexico, Davis filed the instant petition in United States District Court for

the District of New Mexico challenging his transfer to, and incarceration in, a private

facility. Construing his pro-se petition liberally, as we must under Haines v. Kerner, 404

U.S. 519, 520-21 (1972), Davis 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 Because we conclude that Davis has not

“made a substantial showing of the denial of a constitutional right,” we decline to grant

COA. 28 U.S.C. § 2253(c)(2).

       Respondent Wackenhut Corrections Corporation operates the Lea County

Correctional Facility (“LCCF”) under a contract with respondent Lea County, New

Mexico. Petitioner alleges that the contracts between the New Mexico Corrections

Department and Lea County and between Lea County and Wackenhut violate state law

and his constitutional rights to due process, equal protection under the law, and freedom

from cruel and unusual punishment. Petitioner also alleges that the terms of the contracts

violate his constitutional rights by furnishing Lea County with an incentive to create poor



       1
          Because the § 2241 petition in this case is nearly identical to those filed in
Archuleta v. Williams, No. 00-2216 (10th Cir., filed July 24, 2000), and Hall v. Williams,
No. 00-2239 (10th Cir., filed August 28, 2000), our orders and judgments in those cases
are virtually identical to that in the instant case.

                                              2
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.

       Petitioner also raises various additional state law claims. He claims 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 he 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 in the state court proceedings. After considering his objections,

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

district court subsequently denied his application for COA, noting petitioner failed to

make the required showing under 28 U.S.C. § 2253(c)(2).


                                               3
       We conclude petitioner has not made the required showing for COA such 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). To begin

with, petitioner’s state law claims are not cognizable in a federal habeas action. See 28

U.S.C. § 2241(c)(3); Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000).

Furthermore, to the extent petitioner challenges his transfer to a private facility or his

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

§ 2241. See Montez, 208 F.3d at 866; accord Rael v. Williams, __ F.3d __, 2000 WL

1051845 (10th Cir. July 31, 2000) (holding the fact that an 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).

       The application for a certificate of appealability is DENIED. This matter is




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

which we decided after the district court dismissed the petition.

                                               4
DISMISSED.3

       The mandate shall issue forthwith.

                                            ENTERED FOR THE COURT



                                            Carlos F. Lucero
                                            Circuit Judge




       3
         See Hogan v. Zavaras, 93 F.3d 711, 712 (10th Cir. 1996) (denying COA and
dismissing an appeal of the district court’s denial of a § 2241 petition for failure to
exhaust).

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