whether certificate of appeal of the law is required and whether there were any constitutional or rather rights parvaz of all rights violated when mr white was transferred to a private institution and colorado and then returned to the department of correction corrections and washington i think all three of these hinge upon one point that i think has perhaps institution a private institution in colorado accepted it would appear and and i am looking now it's at a situation that i have not looked at because the contention is that it was not but it would appear as if there would be continuous pressing and perhaps my original statement that it would be in twenty to fifty four would be an error in that respect because i'm not sure that if the different were he would have to be a legal transfer for him to still be in custody in the washington field the one colorado different were legal transfer then i don't think he would have a claim under twenty two forty one twenty two fifty four do you think of taking your characterization of his claims he from your perspective he's not blaming or complaining about having to serve his sentence in a private facility outside of the state of washington away from where his family might be only to the extent that that was acco with out any authority in the washington state law your claim is that if you understand his petition your claim your position is that when they transferred him they essentially released  point believe in the department of correction says that when a prisoner is transferred to crowley or anywhere else i assume that any other contract the sum of our  they no longer have custody if they gave up that custody and did so without a legitimate contract in place then they simply relinquished custody cannot just go get briefing and counsel reminded the court i would ask that the court affirm the district court's underlying judgment but for different reasons stated things the district court gave and in the process of doing so the court announced two bright line rules that the court has corpus petition he files with the federal court would be one governed by section twenty two fifty four and the second bright line rule would be if the petitioners detention stems from the state court process then  certificate of appeal ability is required regardless of whether it's a section twenty two forty one or section twenty two fifty four petition in this case we believe that this is a section twenty two fifty four proceeding not a twenty t forty one perceiving mr white has made much of the fact that he's not challenging his underlying state court judgment the king county judgment that put him in custody rather that he's challenging on his continued custody by this state of washington park corrections and i believe that that distinction that he is making is completely irrelevant under section twenty two fifty four because the statute refers to the lawfulness of the state prisoners custody  not the underlying judgement that put him in custody but to the lawfulness of his custody and clearly mr weiss custody stems from his king county judgment consensus from the one nine hundred ninety we believe that the case of felker versus target united states marine corps case although it's not directly governing on this issue on this court it does stablish a guiding light for this court because in that case the supreme court considered itself to be b by section twenty two fifty four simply because the petitioner was under the custody of the state court judgment and that is also the majority rule as we pointed out in our brief by margin of for to the majority rule cases it appears have in fact heeded the advice of the supreme court from felker versus turbaned but the two minority case rules on montana's and the green case appear not to have granted hanukah at all and  with the statutory language is critical here because section twenty two fifty four is critically narrower than twenty two forty one and it is more specific twenty two fifty four is limited to state prisoners whose custody stems from the judgment of the state court and we believe for congressional intent to allow the state court prisoner in the state prison or to bypass all of the procedures that congress has put in place for section twenty two fifty four petitions that do not necessarily apply to section twenty two forty one petitions section twenty two forty one does have a place for state prisoners but it should be limited to those cases where the petitioner has custody is not dependent upon a judgment of any sort and that would be in cases of speedy trial claims double jeopardy claims and extradition and detain or challenges and i believe the court in that mcneely versus a lot of us earlier this year recognized that distinction where it allowed the state of detainees to proceed under section twenty two forty one despite his characterization of his petition as a twenty two fifty four and the state's concession that it was a twenty to fifty four and  district court's characterization of it as twenty two that before the court recognized that it was actually section twenty two forty one case so we would ask that the court construe mr white's petition as a section twenty two fifty four petition and we believe the certificate of appeal ability is required in his case under section twenty two fifty three c and again the majority rule is the i think whenever a person is going to custody as a result the state court process as decisions where they're where what is at stake is his something other than the validity of the underlying judgment they were for example in madly versus u s coal commission it was the u s parole commission's decision  find mr madly not to be parole i believe the other cases were either prison disciplinary proceedings or some other decision other than a state court decision that resulted in and the petition custody over him by moving him outside the state's borders and that therefore the state has no justification for giving him custody at this time so i think that actually what he is complaining about he says current custody and i don't know that he will be able was being held as a result of a state court judgment or as a result excuse me of the state court process because of the custody as a result of the process with the simply retake custody and somehow reinstate a process or judgment that it's been relinquished by relinquishing the custody to a private institution four in the case and supporting twenty two fifty four have to do with parole with good time we're now looking at that here we're looking at the fact that he is being held in violation  certificate of appeal ability in many way and the state seems to concede this that if someone is detained without being brought before a judge or a magistrate twenty two forty one