                                                                      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

 JOE GARCIA MARTINEZ,

       Petitioner-Appellant,
 v.

 JOE WILLIAMS, Warden, Lea County
 Correctional Facility; GARY
 JOHNSON, Governor, State of New
 Mexico; ROBERT PERRY, Secretary                      No. 00-2198
 of Corrections; NEW MEXICO                 (D.C. No. CIV-00-0627-LH/DJS)
 CORRECTIONS DEPARTMENT,                              (Dist. N.M.)
 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 SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.




      After examining the briefs and 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. 1

      The facts and issues in this case are identical to those in Rael v. Williams,

     F.3d        , 2000 WL 1051845 (10th Cir. July 31, 2000). Petitioner is an

inmate appearing pro se and in forma pauperis. In his 28 U.S.C. § 2254 petition

for habeas corpus relief, he challenged his transfer from a New Mexico state-run

prison facility to a private prison facility, and he also challenged the conditions of

his confinement. He raised both federal constitutional claims and state claims.

He sought an order vacating his conviction and sentence and release from

incarceration. Construing the petition as one brought pursuant to 28 U.S.C.

§ 2241, the district court dismissed the petition without prejudice for failure to

exhaust state remedies and subsequently declined to issue a certificate of

appealability.

      The district court correctly construed this pro se petition as having been

filed pursuant to § 2241 rather than § 2254. See McIntosh v. United States Parole

Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). A state prisoner may appeal denial

of a § 2241 petition only upon issuance of a certificate of appealability.



      1
       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.

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28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir.

2000). A certificate of appealability shall issue upon a substantial showing of

the denial of a constitutional right. Id. at 869; 28 U.S.C. § 2253(c)(2). Here

there is no such showing, and accordingly we deny the application for a certificate

of appealability.

      Petitioner’s claims of improper transfer do not raise a federal constitutional

claim. See Montez at 865-66 & n. 4. His claims of improper conditions of

confinement do not state a claim under § 2241. 2 And, his claims of violation of

state law similarly are not cognizable in a federal habeas action. See 28 U.S.C.

§ 2241(c)(3); Montez at 865.

      We DENY petitioner’s application for certificate of appealability and

DISMISS this appeal.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




      2
        Claims challenging the conditions of confinement are more properly
brought under 42 U.S.C. § 1983, which is not a claim petitioner has asserted in
this action.

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