                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS               April 20, 2010
                                                                Elisabeth A. Shumaker
                                  TENTH CIRCUIT                     Clerk of Court


 PATRICK DURAY PORTLEY-EL,

                 Petitioner-Appellant,                  No. 10-6009
          v.                                          (W.D. of Okla.)
 FRED FIGUEROA, Warden,                        (D.C. No. 5:09-CV-00593-M)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Patrick D. Portley-El, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal from the dismissal of his 28 U.S.C.

§ 2241 habeas petition. Having jurisdiction under 28 U.S.C. §§ 1291, 2253, we

DENY Portley-El’s request for a COA and DISMISS his appeal.




      *
         This order is not binding precedent except under the doctrines of law of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 briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      In 2007, Portley-El was transferred from a state prison in Colorado to

North Fork Correctional Facility (NFCF), a private prison in Oklahoma. In

December 2007, while still incarcerated at NFCF, Portley-El filed a habeas action

in Oklahoma state court in which he named NFCF warden Fred Figueroa as

respondent and alleged his confinement at the prison was illegal because his

transfer was done pursuant to an invalid contract between the State of Colorado

and NFCF’s owners. Portley-El also contended that by transferring him to NFCF

illegally, Colorado waived jurisdiction over him and granted him a de facto

pardon or commutation, making him eligible for immediate release.

      Before the Oklahoma state courts ruled on his petition, Portley-El was

transferred back to a Colorado state prison. He then filed this habeas petition

with the Western District of Oklahoma, again naming NFCF warden Fred

Figueroa as respondent. He argued that because the Oklahoma state courts had

not ruled on his habeas petition, the federal district court should have removed

the case and ordered his immediate release. Alternatively, he seemed to argue

that the Western District of Oklahoma should have taken upon itself to transfer

his petition to a court with jurisdiction pursuant to 28 U.S.C. § 1631. He argued

such a transfer was in the interest of justice because Colorado transferred him to

Oklahoma pursuant to an invalid contract and that by so doing, it relinquished its

authority over him.

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      The district court dismissed the petition for want of jurisdiction and denied

Portley-El’s request to have the case transferred to a different district court.

                                    II. Discussion

      A state petitioner may not appeal from a final order denying his or her

§ 2241 petition without first obtaining a COA. 28 U.S.C. § 2253(c)(1)(A);

Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). We will not issue a

COA unless the “applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).

      Portley-El has not made that showing. As the district court reasoned,

Portley-El named Warden Figueroa as the sole respondent in his habeas petition,

but Figueroa was not Portley-El’s custodian at the time he filed the petition. See

Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995) (“The law is well

established that the proper respondent to a habeas action is the habeas petitioner’s

custodian.”). Because he is not Portley-El’s custodian, Warden Figueroa is not a

proper party to the habeas action. Further, Portley-El’s custodian, the warden of

the Colorado prison in which he was detained when he filed this habeas petition,

is outside the territorial jurisdiction of the Western District of Oklahoma. See

Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 484, 494–495 (1973) (stating

that habeas jurisdiction requires “that the court issuing the writ have jurisdiction

over the custodian”). Thus, the district court properly dismissed the petition for




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lack of jurisdiction, and that dismissal did not violate Portley-El’s constitutional

rights.

          Though it is not entirely clear from the briefs, it seems Portley-El contends

the district court should transfer his case to a federal court that has jurisdiction.

Pursuant to 28 U.S.C. § 1631, if a court “finds that there is a want of

jurisdiction,” it must transfer the action to “any other such court in which the

action or appeal could have been brought at the time it was filed or noticed,” but

only if doing so “is in the interest of justice.” Id. As the district court correctly

noted, however, “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 v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000) (quotations omitted).

          We agree with the district court that Portley-El’s claims are without merit,

and a transfer is not in the interest of justice. First, we have recognized that

“[n]either the United States Constitution nor any federal law prohibits the transfer

of an inmate from one state to another.” Montez, 208 F.3d at 865–66. Second,

Portley-El’s challenges based on the contract between Colorado and NFCF’s

owner are state law claims not cognizable in a § 2241 action challenging a prison

transfer. See Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000). Thus,

Portley-El’s claim that his transfer to and confinement in a private prison in

Oklahoma entitles him to immediate release fails to state a cognizable claim for

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habeas relief under 28 U.S.C. § 2241. Accordingly, Portley-El has not made a

substantial showing of the denial of a constitutional right.

                                  III. Conclusion

      We DENY Portley-El’s request for a COA and DISMISS his appeal.

                                           ENTERED FOR THE COURT

                                           Timothy M. Tymkovich
                                           Circuit Judge




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