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

### SEP 13 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JARED S. DUKEMINIER, Petitioner-Appellant, v. 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, Respondents-Appellees. No. 00-2220 (D.C. No. CIV-00-191) (Dist. N.M.)

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determined unanimously that oral argument would not materiallyassist the determination of1 This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and 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. -2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 1
The facts and issues in this case are identical to those in Rael v. Williams , F.3d , 2000 WL 1051845 (10th Cir. July 31, 2000). Petit ioner is an inmate appearing pro se and in forma pauperis . In his 28 U.S.C. § 2254 petition for habeas corpus relief, he challenged his transfe r from a New Mexico state-run prison facility to a private prison facility, and h e also challenged the conditions of his confinement. He raised both federal constituti onal claims and state claims. He sought an order vacating his conviction and sent ence and release from incarceration. Construing the petition as one brou ght pursuant to 28 U.S.C. § 2241, the district court dismissed the petition w ithout prejudice for failure to exhaust state remedies and subsequently declined to issue a certificate of appealability. The district court correctly construed this pro se petition as having been filed pursuant to § 2241 rather than § 2254. See McIntosh v. United States Parole
Comm’n , 115 F.3d 809, 811 (10th Cir. 1997). A state pris oner may appeal denial of a § 2241 petition only upon issuance of a certif icate of appealability.2 Claims challenging the conditions of confinement ar e more properly

brought under 42 U.S.C. § 1983, which is not a clai m petitioner has asserted in this action. -3- 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000). A certificate of appealability shall issue upon a substantial showing of the denial of a constitutional right. Id. at 869; 28 U.S.C. § 2253(c)(2). Here there is no such showing, and accordingly we deny t he application for a certificate of appealability. Petitioner’s claims of improper transfer do not rai se a federal constitutional claim. See Montez at 865-66 & n. 4. His claims of improper condition s of confinement do not state a claim under § 2241. 2 And, his claims of violation of state law similarly are not cognizable in a federal habeas action. See 28 U.S.C. § 2241(c)(3); Montezat 865. We DENY petitioner’s application for certificate of appealability and DISMISS this appeal.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge