                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        FEB 16 2000
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk


 SCOTT LEE CUPPLES,

          Petitioner-Appellant,
                                                      No. 99-1456
 v.
                                                  (D.C. No. 99-Z-1813)
                                                        (D. Colo.)
 MICHAEL PUGH, Warden,

          Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Pro se Petitioner-Appellant Scott Lee Cupples (“Cupples”) is incarcerated

at the United States Penitentiary, Administrative Maximum (ADX) in Cañon City,

Colorado. Cupples brought a 28 U.S.C. § 2241 habeas petition, arguing that his

transfer from the Iowa State Penitentiary in Fort Madison, Iowa to ADX was

illegal, and that the Iowa Department of Corrections (IDOC) could not have a


      *
        After examining appellant’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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
valid detainer against him for the remainder of his state sentence because the

IDOC waived jurisdiction over him when it made the unlawful transfer. The

district court dismissed the petition. We affirm.

                                  BACKGROUND

      On April 16, 1992, Cupples was sentenced to a ten-year term of

incarceration, to be served within the IDOC, for his conviction in Iowa state court

of delivery of a controlled substance. On June 1, 1992, Cupples was sentenced to

a twenty-five year term of incarceration, to be served within the IDOC and

consecutive to his ten-year sentence, for his conviction in Iowa state court on the

charge of robbery in the first degree. On April 1, 1994, Cupples was sentenced in

the United States District Court for the Southern District of Iowa to 151 months

of imprisonment and two years of supervised release, to be served concurrently

with the two state terms of incarceration, for his conviction on the charges of

possession of an unregistered shotgun and being a felon in possession of a

firearm. 1 The federal district court recommended that Cupples serve his federal

sentence at the Iowa state prison in which he was serving his state sentence.

While serving his time in the Iowa State Penitentiary, Cupples received an

additional thirty-year sentence when an Iowa state court convicted him of being


      1
       On April 8, 1994, and on August 27, 1996, the United States marshal
lodged detainers against Cupples at the Iowa State Penitentiary for Cupples’
federal sentence.

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an habitual offender and of assault with intent to inflict serious injury after he

stabbed an Iowa correctional officer. The court ordered that Cupples serve the

thirty-year conviction consecutively to his other state sentences, resulting in a

total state sentence of sixty-five years.

      After the stabbing incident, Cupples was transferred involuntarily to ADX

on May 29, 1997. On February 17, 1998, IDOC lodged a detainer against Cupples

at ADX to ensure his return to Iowa for service of the remainder of his state

sentences after he completed his federal sentence.

      On September 15, 1999, Cupples filed a petition for writ of habeas corpus

under 28 U.S.C. § 2241, contending that the detainer lodged against him by IDOC

was unlawful because Iowa had relinquished its jurisdiction over him when it

illegally transferred him to federal prison, and that the detainer therefore violated

his Due Process, Equal Protection, and Eighth Amendment rights. As part of his

argument that Iowa lacked jurisdiction over him for his state sentence, Cupples

also alleged certain technical violations in the transfer agreement between the

Federal Bureau of Prisons and the IDOC that he claimed demonstrated the

transfer was illegal. The district court denied Cupples’ petition and dismissed the

action on September 29, 1999. It also denied Cupples’ request to proceed in

forma pauperis on appeal after determining that the appeal was not taken in good




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faith. Cupples now appeals, raising the same claims he raised in the district court.

                                   DISCUSSION

      We agree with the district court that Cupples has failed to present any facts

or legal argument to show that his transfer to ADX was illegal. The United States

Constitution does not prohibit the transfer of an inmate from one state to another.

See Olim v. Wakinekona, 461 U.S. 238, 247 (1983). Cupples was serving

concurrent state and federal sentences in Iowa. After the stabbing incident, IDOC

determined that Cupples presented a “management problem” within the Iowa

system, that “he need[ed] to be removed from [the Iowa State Penitentiary],” and

that “Iowa [did] not have alternative housing.” (See Pet’r Br., Ex. 8.) The

Federal Bureau of Prisons then took custody of Cupples, and he continued to

serve his federal time at ADX.

      Cupples premises his allegations that IDOC’s detainer against him is

unlawful on the notion that the transfer to federal prison illegally converted his

concurrent federal and state sentences to consecutive sentences; however we find

nothing in Cupples’ brief or the record to support that notion. In fact, the record

contains documents that specify the sentences originally designated as concurrent

continue to be concurrent. (See Aplt. Br., Ex. 11; Pet’r Br., Ex. 30, 31.) In

addition to those concurrent sentences, Cupples has a thirty-year state sentence

that he is to serve consecutive to his other state and federal sentences. Cupples’


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federal sentence will expire long before he has served his state sentences.

Therefore, his argument that the detainer against him is unlawful is without merit.

Nothing in Cupples’ brief or the record supports Cupples’ claims that IDOC lacks

jurisdiction over him or that the transfer relieves him from serving the remainder

of his state sentence after he completes his federal sentence.

      Cupples’ other arguments concerning technical violations in the agreement

between the Federal Bureau of Prisons and the IDOC to transfer him are similarly

without merit. Cupples raises those allegations as a means of demonstrating that

the transfer was illegal; however, those allegations are all premised on the

transfer being governed by criteria set forth in 18 U.S.C. § 5003. Nothing in the

record or Cupples’ brief demonstrates that the transfer was or should be governed

by 18 U.S.C. § 5003, and, as stated above, nothing in the record suggests that the

transfer was unlawful. Cupples is currently in federal custody serving a valid

federal sentence and is subject to a valid detainer with IDOC. We therefore

AFFIRM the district court’s decision to deny the petition and dismiss the action.

We also agree with the district court that Cupples has failed to present a

nonfrivolous argument on the law and facts in support of the issues raised on

appeal; therefore we AFFIRM the district court’s order denying Cupples leave to




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proceed in forma pauperis.

      The mandate shall issue forthwith.


                                     ENTERED FOR THE COURT



                                     David M. Ebel
                                     Circuit Judge




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