                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          JUN 21 1999
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 ANTHONY CROWELL,
             Petitioner - Appellant,                     No. 99-2093
 v.                                            (D.C. No. CIV-99-128-CJ-JHG)
 NEW MEXICO PAROLE BOARD and                            (D. New Mex.)
 ATTORNEY GENERAL OF THE
 STATE OF NEW MEXICO,
             Respondents - Appellees.


                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.



      After examining the Petitioner-Appellant Anthony Crowell’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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without

oral argument.

      Petitioner is currently incarcerated in a District of Columbia institution



      *
       This order and judgment is not binding precedent, except under the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.
where he is serving a prison term imposed by a Virginia state court. He served a

portion of his sentence in a New Mexico prison. Petitioner initiated these

proceedings by filing a motion pursuant to 28 U.S.C. § 2255 and a motion for

leave to proceed in forma pauperis. Among other things, Petitioner argued that

he had a due process liberty interest in receiving parole which was violated when

his parole date was delayed because he was given an unfavorable report by the

Virginia Parole Board for a “New Mexico transferred inmate.” R., Doc. 4 at 1.

He also claimed that the unfavorable report was due to changes to the parole

regulations which made them “stricter” and therefore amounted to a violation of

the prohibition against ex post facto laws.

      The district court granted Petitioner’s motion for leave to proceed in forma

pauperis, but it dismissed the case for two reasons. First, because the court had

not imposed any conviction or sentence on Petitioner, he was not entitled to relief

under 28 U.S.C. § 2255. Second, the court found that even if Petitioner’s motion

were construed as a 28 U.S.C. § 2241 or § 2254 petition, the court could not grant

relief because Petitioner “is incarcerated in the District of Columbia, and a habeas

corpus petition must name his warden as respondent.” Id. at 2; see 28 U.S.C. §

2242; Rule 2(a), Rules Governing § 2254 cases; Harris v. Champion, 51 F.3d 901,

906 (10th Cir. 1995) (stating that “[t]he law is well established that the proper

respondent to a habeas action is the habeas petitioner’s custodian”). The court


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also denied Petitioner a certificate of appealability.

      Having reviewed the record and the arguments raised by Petitioner on

appeal, we conclude that Petitioner’s habeas corpus petition was properly

dismissed without prejudice. Petitioner does not attack a sentence or conviction

imposed by the district court for the District of New Mexico; he does not attack a

conviction or sentence imposed by the State of New Mexico nor does it appear

that New Mexico has lodged a detainer against him; and he does not name as a

respondent the warden of his current custodian. We therefore deny Petitioner a

certificate of appealability and dismiss the appeal.

      DENIED and DISMISSED.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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