*

 After examining the briefs and 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); 10th Cir. R. 34.1 (G). The cause therefore

is ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 31 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANDY RAEL,

Plaintiff - Appellant,

vs.

JOE WILLIAMS, Warden, Lea County

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,

Defendants - Appellees.

No. 00-2145

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CIV-00-0299-LH/WWD)

Submitted on the briefs:*

Andy Rael, pro se.
- 2 -

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant, Andy Rael, 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. We grant a certificate of appealability and affirm

the judgment as modified.

Mr. Rael challenges his incarceration in a privately-run prison facility in

Lea County, New Mexico (LCCF), on the grounds that it violates his

constitutional rights. Specifically, Mr. Rael alleges violations of his rights to due

process, equal protection, and the right to be free from cruel and unusual

punishment pursuant to Article II, §18 of the New Mexico Constitution and the

First, Eighth, and Fourteenth Amendments to the United States Constitution.

Mr. Rael claims that 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”). He claims that 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. Rael alleges
- 3 -

that, as a result of these breaches, he has suffered serious and irreparable harm

and is therefore entitled to relief on the grounds that the Defendants, Governor

Gary Johnson, Secretary of Corrections Robert Perry, and the NMCD, violated the

terms of N.M. Stat. Ann. § 31-20-2(G) (Michie 1994 Repl. Pamp.) by failing to

adequately comply with NMCD standards for housing inmates at LCCF. Finally,

Mr. Rael claims that Lea County is not “in the business of providing correctional

or jail services to government entities.” Thus, he believes that the Lea County

contract to provide such services violates N.M. Stat. Ann. §33-1-17(B) (Michie

1998 Repl. Pamp.) and also infringes upon his rights under the First, Eighth, and

Fourteenth Amendments of the United States Constitution.

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

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

cognizable under § 2241, but rejected such a challenge on the merits without

allowing exhaustion, relying upon 28 U.S.C. § 2254(b)(2) as analogous authority. 

Not at issue in Montez were the conditions of confinement in the private prisons. 

See id. at 866 n.4 . The court further held that a certificate of appealability was

required for a § 2241 appeal. See Montez , 208 F.3d at 866-69.

We believe the same result is indicated here. Petitioner has raised a variety

of state law claims that are not cognizable in habeas. See Montez , 208 F.3d at

865. Though the Supreme Court has not set the precise boundaries of habeas
- 4 -

actions, it has distinguished between habeas actions and those challenging

conditions of confinement under 42 U.S.C. § 1983. See Preiser v. Rodriguez , 411

U.S. 475, 499-500 (1973). We have endorsed this distinction and have

recognized that federal claims challenging the conditions of his confinement

generally do not arise under § 2241. See McIntosh v. United States Parole

Comm’n , 115 F.3d 809, 811-12 (10th Cir. 1997) (distinguishing between § 2241

actions and conditions of confinement suits); Carson v. Johnson , 112 F.3d 818,

820-21 (5th Cir. 1997) (same); Merritt v. Pugh , No. 00-1129, 2000 WL 770577, at

* 1 (10th Cir. June 15, 2000) (unpublished) (conditions of confinement claim not

properly brought under § 2241); Thompson v. True , No. 97-3275, 1998 WL

536383, at *1 (10th Cir. Aug. 18, 1998) (unpublished) (same); Murphy v. Brooks ,

No. 97-1175, 1997 WL 796485, at *1 (10th Cir. Dec. 31, 1997) (unpublished)

(same); United States v. Sisneros , 599 F.2d 946, 947 (10th Cir. 1979) (same as to

§ 2255).

Under Montez , the fact that an inmate is transferred to, or must reside in, a

private prison, simply does not raise a federal constitutional claim, though it may

be raised procedurally under § 2241. See Montez , 208 F.3d at 866 n.4; Pischke v.

Litscher , 178 F.3d 497, 500 (7th Cir. 1999). Thus, this claim should be dismissed

with prejudice; exhaustion of state court remedies is not required. See Montez ,

208 F.3d at 866 (relying on policy of § 2254(b)(2)).
- 5 -

In view of the foregoing, we GRANT a certificate of appealability, and

AFFIRM the judgment of the district court as modified to dismiss the claim

cognizable under § 2241 with prejudice; all other claims contained in the petition

are dismissed without prejudice.