* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially 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 w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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. 

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

### January 11, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ULISES CABRERA TAMAYO, Defendant - Appellant. No. 04-2307 (D.C. Nos. CIV-04-1061; CR-02-539)

(D.N.M.)

ORDER AND JUDGMENT *

Before EBEL , McKAY and HENRY , Circuit Judges.
Defendant-Appellant Ulises Cabrera Tamayo petitione d the district court for a reduction in his sentence. We agree with the district court’s disposal of Tamayo’s primary argument, but find that he also ra ised an equal protection claim that was not addressed by the district court. Howe ver, that claim is properly raised only in a motion pursuant to 28 U.S.C. § 224 1, a motion which the district- 2 -

court lacked jurisdiction to consider. Thus we DEN Y Tamayo’s request for a certificate of appealability on his primary argumen t and REMAND to the district court with instructions to dismiss the equal protec tion claim for lack of jurisdiction.
BACKGROUND Tamayo was convicted of distribution of a controlle d substance and sentenced to 70 months imprisonment. He alleges th at his status as a deportable alien means that, during his time in prison, he is ineligible for certain programs that citizen prisoners may be entitled to, such as serving his sentence in a minimum security prison or spending a portion of his sentence in a halfway hou se or in home confinement. Tamayo filed a “Petition for Adjustment of Sentence ” with the district court, arguing that these “collat eral consequences” of his status as a deportable alien provide the basis for a reduc tion in his sentence. The district court treated Tamayo’s petition as a m otion attacking his sentence pursuant to 28 U.S.C. § 2255. The court noted that the case Tamayo cited in support of his argument, United States v. Restrepo , 802 F. Supp. 781 (E.D.N.Y. 1992), had been vacated by the Second Cir cuit, see United States v. Restrepo , 999 F.2d 640 (2d Cir. 1993). The district court also noted that this court has agreed with the reasoning of the Second C ircuit that collateral consequences of deportable alien status such as tho se cited by Tamayo do not- 3 -

provide grounds for a downward departure of a defen dant’s sentence. See United States v. Mendoza-Lopez , 7 F.3d 1483, 1487 (10th Cir. 1993), impliedly overruled on other grounds byUnited States v. Fagan , 162 F.3d 1280 (10th Cir. 1998). Therefore, the district court dismissed Tam ayo’s petition. The district court also denied Tamayo’s request for a certificat e of appealability (“COA”). Tamayo noticed his appeal to this court; we constru e this notice of appeal as a renewed request for a COA. See Fed. R. App. P. 22(b)(2).
DISCUSSION Reading Tamayo’s pro se petition liberally, see Price v. Philpot , 420 F.3d 1158, 1162 (10th Cir. 2005), he raises two independ ent claims: a claim for a reduction in his sentence due to his deportable ali en status and an equal protection challenge based on the fact that his status as a de portable alien subjects him to a more severe sentence than a U.S. citizen in the sam e position. The first claim was raised in a much more clear and direct manner than the second, thus the district court understandably addressed only the first in di smissing his petition. We discuss both claims in turn.
Reduction in Sentence This claim was properly treated as a § 2255 motion, thus Tamayo needs a COA if he is to pursue the claim further. See 28 U.S.C. § 2253(c)(1)(B). In order for a COA to issue, “a habeas prisoner must m ake a substantial showing of2 Even if the district court’s Restrepo decision had been upheld, it stood

only for the proposition that a sentencing court may , in its discretion, grant a downward departure during sentencing based on the c ollateral consequences of alienage. 802 F. Supp. at 790. A sentencing courthaving that discretion in no way suggests that a habeas petitioner is entitled to a reduction in sentence. - 4 - the denial of a constitutional right, a demonstrati on that . . . includes showing that reasonable jurists could debate whether (or, for th at matter, agree that) the petition should have been resolved in a different m anner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). W e agree with the district court that Tamayo’s request for a downward departure based on the “collateral consequences” of his status as a deport able alien has been foreclosed by the Second Circuit’s decision in Restrepo and our decision in Mendoza-Lopez , and thus there is no debate whether his petition sh ould have been resolved in a different manner. 2 We therefore deny his request for a COA on this i ssue. Equal Protection Tamayo raised an equal protection claim in his peti tion by stating that “Petitioner’s status [as a deportable alien] places (sic) Petitioner to serve his sentence under circumstances more severe than those facing citizens of the United States under similar or exact circumstances.” Howe ver, this claim is properly brought under 28 U.S.C. § 2241, rather than under § 2255, because it concerns the executionof his sentence. See McIntosh v. United States Parole Comm’n , 115- 5 -

F.3d 809, 811 (10th Cir. 1997). Thus we treat Tamayo’s petition as, in part, a § 2241 habeas petition. See Santillanes v. United States Parole Comm’n , 754 F.2d 887, 888 n.1 (10th Cir. 1985). Although a federal prisoner does not need a COA to appeal the denial of a § 2241 motion, see Bledsoe v. United States , 384 F.3d 1232, 1235 (10th Cir. 2004), “[a] petition under 28 U.S.C. § 2241 . . . m ust be filed in the district where the prisoner is confined,” Haugh v. Booker , 210 F.3d 1147, 1149 (10th Cir. 2000). Moreover, habeas jurisdiction attaches on t he initial filing of the § 2241 petition—that is, a prisoner must file his § 2241 m otion in the district where he is confined at the time of the filing . See Santillanes ,754 F.2d at 888. At the time of filing, Tamayo was incarcerated at the Eden Detenti on Center in Eden, Texas, but he filed his petition in the district court for the District of New Mexico. That court lacked jurisdiction to consider his claim for§ 2241 relief. We have held that “[j]urisdictional defects that ar ise when a suit is filed in the wrong federal district may be cured by transferunder the federal transfer statute, 28 U.S.C. § 1631, which requires a court t o transfer such an action if the transfer is in the interest of justice.” Haugh , 210 F.3d at 1150 (10th Cir. 2000) (quotations omitted). However, “a court is authori zed 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 res ult from transferring a case3 Most of the decisions addressing this issue are unp ublished. United States

v. Benitez , 2004 WL 2414798 (D.Or. Oct. 25, 2004); United States v. Nguyen , 2000 WL 1133055 (D. Or. Aug. 10, 2000); Ruiz-Loera v. United States , 2000 WL 33710839 (D. Utah June 23, 2000); United States v. Acevedo , 2000 WL 764563 (D. Kan. May 26, 2000); Palafox-Barajas v. United S tates , 1999 WL 1338451 (S.D. Cal. Dec. 8, 1999). However, as noted, we ag ree with their reasoning. - 6 - which is clearly doomed.” Id. (quotations omitted). Our “quick look” at the merits of Tamayo’s equal protection claim convinces us that his argument is without merit. “[T]he federal government can treat aliens differe ntly from citizens so long as the difference in treatment has a rational basis .” Soskin v. Reinertson , 353 F.3d 1242, 1254 (10th Cir. 2004) (citing Matthews v . Diaz , 426 U.S. 67, 78-83 (1976)). The courts that have considered claims si milar to Tamayo’s have reasoned that denying deportable aliens the opportu nity to participate in certain pre-release programs does not violate equal protect ion. See, e.g. , Lizarraga-Lopez v. United States , 89 F. Supp. 2d 1166, 1169 (S.D. Cal. 2000). 3 We agree with the decisions of these courts—there i s a rational basis to deem deportable aliens, who will be sent out of the coun try after the term of their sentence, ineligible for programs geared toward reh abilitating prisoners who will re-enter society after their release from confineme nt. As Tamayo’s claim lacks merit, we decline to transfer the action.
CONCLUSION- 7 -

For the foregoing reasons, we DENY Tamayo’s requestfor a COA on his claim for a reduction in sentence. Further, as the district court lacked jurisdiction to consider Tamayo’s equal protection claim, we REM AND to the district court with instructions to dismiss that claim without pre judice to his reasserting it in the proper forum.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge