* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAY 18 2000 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID J. CROSBY, Petitioner-Appellant,

v. GARY NEET, Warden; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees. No. 00-1020 (D.C. No. 99-Z-1994) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e cause is therefore ordered submitted without oral argument.-2-

David J. Crosby, a state prisoner appearing pro se, appeals the denial of his petition for habeas corpus relief and seeks a certi ficate of appealability. Mr. Crosby was convicted in Colorado and began serving his sentence there. He was later transferred to two prisons in Texas before hi s transfer back to a state correctional facility in Colorado. He filed a peti tion for habeas corpus relief under 28 U.S.C. §§ 1651, 2241, 2243, and 2254, clai ming that his transfer to Texas violated his constitutional right to due proc ess and that the State of Colorado lost jurisdiction over him as a result of the transfer. The district court denied his claims and his request for a certificate of appealability. In order to obtain a certificate of appealability from this cou rt, Mr. Crosby must make “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). The gist of Mr. Crosby’s argument is his assertion that the transfers were in violation of state law and that as a result he was denied his constitutional right to due process. This court recently considered and re jected the claim that a transfer such as the one challenged here violates a prisoner ’s constitutional rights. See Montez v. McKinna , 208 F.3d 862 (10th Cir. 2000). We pointed out t here that the transfer of an inmate from one state to anotherviolates neither Colorado nor federal law. Id. at 865-66. We further noted that an inmate has no constitutionally protected right to serve his sente nce at any particular prison. Id.1 On appeal, Mr. Crosby appears to recognize that a procedural due process

claim requires a constitutionally cognizable liberty interest and characterizes his claim as one based on substantive due process in anattempt to overcome this deficiency. The allegations in support of his clai m, however, reveal that it is the allegedly improper transfer procedures for which he seeks a remedy. Moreover, any due process claim, either substantive or proced ural, is by the very language of the Fourteenth Amendment and the authority cited by Mr. Crosby dependent upon the existence of an underlying constitutionally rec ognized interest that is simply not present under the circumstances here. -3- Because Mr. Crosby thus has no constitutional inter est entitled to due process protection, his due process claim is without merit. 1 Mr. Crosby also contends the state of Colorado lostjurisdiction over him by the transfers. To the extent this claim is base d on the Constitution, it is without merit. See Blango v. Thornburgh , 942 F.2d 1487, 1490 (10th Cir. 1991) (“Criminal jurisdiction over a state’s inhabitants remains with the respective states and territories under whose jurisdiction the prisoners were originally sentenced.”). Finally, Mr. Crosby contends the district court err ed in denying relief without holding an evidentiary hearing. Because th e issues raised are purely legal ones that can be resolved on the basis of Mr. Crosb y’s petition, the district court was not required to have an evidentiary hearing. See United States v. Tubwell , 37 F.3d 175, 179 (5th Cir. 1994); 28 U.S.C. § 2243.-4-

We DENY Mr. Crosby’s request for a certificate of appealab ilty and DISMISS this appeal. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge