                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           JAN 11 2001
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 JOE JORDAN,

               Petitioner-Appellant,                    No. 00-2235
          v.                                                D.N.M.
 JOE WILLIAMS, Warden, Lea County                 (D.C. No. CIV-00-707)
 Correctional Facility; GARY
 JOHNSON; Governor, State of New
 Mexico; ROBERT PERRY, Secretary
 of Corrections; NEW MEXICO
 CORRECTIONS DEPARTMENT,
 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 BALDOCK , HENRY , and LUCERO , Circuit Judges.          **




      *
        This order and judgment is not binding precedent, except under the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.

      **
        After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for decision on the briefs
                                                                     (continued...)
      Floyd Jordan, proceeding pro se, appeals the dismissal, without prejudice, of

his habeas corpus action brought pursuant to 28 U.S.C. § 2241 for failure to

exhaust state court remedies. Mr. Jordan challenges his incarceration in the Lea

County Correctional Facility (LCCF), a privately-run prison facility in New

Mexico, on the grounds that it violates both state law and his constitutional rights.

Mr. Jordan claims he is a third-party beneficiary of the contract between the New

Mexico Corrections Department (NMCD) and Lea County, as well as the contract

between Lea County and Wackenhut Corrections Corporation (Wackenhut), the

company that operates LCCF. He maintains his constitutional rights have been

violated because Lea County and Wackenhut have breached these contracts by

failing to ensure the proper classification of inmates and failing to provide a

sufficient number of properly trained and adequately experienced staff. Mr.

Jordan alleges that the Defendants, Governor Gary Johnson, Secretary of

Corrections Robert Perry, and the NMCD, therefore violated the terms of N.M.

Stat. Ann. § 31-20-2(G) by failing to adequately comply with NMCD standards for

housing inmates at LCCF. As a result, he alleges that he has suffered unspecified,

but serious and irreparable harm. Mr. Jordan also claims that Lea County is not


      **
        (...continued)
without oral argument. See Fed. R. App. P. 34(f). The case is therefore
submitted without oral argument.


                                          -2-
“in the business of providing correctional or jail services to government entities.”

Aplts’ Br. Att. (b). Thus, he believes the Lea County contract to provide such

services violates N.M. Stat. Ann. § 33-1-17(B) and also infringes upon his rights

under the First, Eighth, and Fourteenth Amendments of the United States

Constitution. Finally, Mr. Jordan contends that Wackenhut engaged in fraud

through its contract, in violation of N.M. Stat. Ann. § 30-16-6, and that the acts of

all of the defendants constitutes a pattern of racketeering activity prohibited under

N.M. Stat. Ann. § 30-42-3(D).

      Mr. Jordan filed a pro se petition in the New Mexico district court for writ

of habeas corpus pursuant to 28 U.S.C. § 2241, seeking an order vacating his

conviction and sentence and granting his unconditional release. The magistrate

judge issued a sua sponte show cause order for Mr. Jordan to explain why the

petition should not be dismissed for failure to exhaust state remedies. After

consideration of Mr. Jordan's response to the show cause order, the district court

dismissed the petition without prejudice. Mr. Jordan appealed. He also seeks a

certificate of appealability pursuant to 28 U.S.C. § 2253(c).

      In Montez v. McKinna , 208 F.3d 862, 864-65 (10th Cir. 2000), this court

held that a habeas petition challenging a transfer to a privately run prison may be

cognizable under § 2241. We made clear that a state habeas petitioner is generally

required to exhaust state remedies when his action is brought under § 2241.     See id.


                                           -3-
at 866. The prisoner in that case had failed to exhaust his state remedies, but we

nevertheless rejected his challenge on the merits, relying upon 28 U.S.C. §

2254(b)(2) as analogous authority.

       We also held that a certificate of appealability is required for a § 2241

appeal. See id. at 866-69. To obtain a certificate of appealability, a habeas

petitioner must make a substantial showing of the denial of a constitutional right.

See 18 U.S.C. § 2253(c)(2). This showing requires a demonstration 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). We

conclude Mr. Jordan has failed to make this showing.

       First, Mr. Jordan's state law claims are not cognizable in a federal habeas

actions. See 28 U.S.C. § 2241(c)(3);    Montez , 208 F.3d at 865. Further, to the

extent Mr. Jordan challenges his transfer per se to a private facility pursuant to

contract, such a claim is not cognizable under § 2241.   See id. at 865-66; accord

Rael v. Williams , 223 F.3d 1153, 1154 (10th Cir. 2000) (stating that fact that

inmate is transferred to, or must reside in, a private prison, “simply does not raise

a federal constitutional claim”).   1




       We note that the district court did not have the benefit of our decisions in
       1

Montez and Rael , which we decided after the district court dismissed the petition.



                                            -4-
       Finally, to the extent Mr. Jordan 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 the federal courts 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).

       Accordingly, we DENY Mr. Jordan's request for a certificate of

appealability and DISMISS this appeal.

                                                         Entered for the Court,




                                                         Robert H. Henry
                                                         United States Circuit Judge




                                             -5-
