F I L E D

United States Court of Appeals

Tenth Circuit

OCT 4 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JACQUELINE OVERTURF,

Petitioner - Appellant,

v.

NEVILLE MASSIE; OKLAHOMA

DEPARTMENT OF CORRECTIONS,

Respondent - Appellee.

NORA CONTRADES,

Petitioner - Appellant,

v.

NEVILLE MASSIE,

Respondent - Appellee.

DAWN LINDSEY,

Petitioner - Appellant,

v.

NEVILLE MASSIE; OKLAHOMA

DEPARTMENT OF CORRECTIONS,

Respondents - Appellees.

No. 04-6023

No. 04-6027

No. 04-6031
* After examining the brief and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

2

PATRICIA SOARES,

Petitioner - Appellant,

v.

NEVILLE MASSIE; OKLAHOMA

DEPARTMENT OF CORRECTIONS,

Respondents - Appellees.

No. 04-6037

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. Nos. 03-CV-1006-L, CV-03-1452-R, 

03-CV-1005-H, CV-03-1130-M)

Submitted on the Brief:*

Jacqueline Overturf, Nora Contrades, Dawn Lindsey, and Patricia Soares filed a

combined appellants’ brief, pro se.

Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.

KELLY, Circuit Judge.

Petitioners-Appellants Jacqueline Overturf, Dawn Lindsey, Nora Contrades, and
1

In the district court, Petitioners filed separate petitions for writs of habeas corpus. 

In each case, the district court adopted the magistrate judge’s report and recommendation

that the petition be denied. We granted in part motions to consolidate these appeals for

the purpose of submitting one brief provided each Petitioner signed that brief. As all

Petitioners seek a COA, we now consolidate the cases for disposition. See Fed. R. App.

P. 3(b)(2).

2 The statute provides:

Transfer of inmates to out-of-state institutions.

(a) The director may effect the transfer of a committed felon to any

correctional institution located in another state regardless of whether the

state is a member of the Western Interstate Corrections Compact; provided

that the institution is in compliance with appropriate health, safety, and

sanitation codes of the state, provides a level of program activity for the

inmate that is suitable, and is operated by that state, by any of its political

subdivisions, or by a private institution; and provided further that the

transfer is either:

(1) In the interest of the security, management of the correctional institution

where the inmate is presently placed, or the reduction of prison

overcrowding; 

or

(2) In the interest of the inmate.

3

Patricia Soares,1 state inmates appearing pro se, seek certificates of appealability (COAs)

so that they might appeal the summary denials of their petitions for habeas corpus, 28

U.S.C. § 2241, by the district courts. Petitioners were convicted and sentenced in Hawaii

state court. Subsequently, they were transferred to a private correctional facility in

Oklahoma operated by Dominion Correction Services (DCS). R. (04-6027) Doc. 3 at 2 &

n.3; see Haw. Rev. Stat. § 353-16.2.2

 The DCS facility then was purchased by the State
Haw. Rev. Stat. § 353-16.2.

4

of Oklahoma for operation as a state-owned correctional facility. Id.

In their § 2241 petitions, Petitioners attack the execution of their sentences as it

affects the fact or duration of their confinement in Oklahoma, as well as the continued

validity of the Hawaii sentences given the allegedly unconstitutional transfers. They also

challenge the execution of the sentences on Eighth Amendment grounds. Though there is

some overlap here with 42 U.S.C. § 1983 insofar as the Eighth Amendment claim, we

have construed similar petitions as arising under § 2241, with a COA required to appeal

the denial of such petitions. Montez v. McKinna, 208 F.3d 862, 865, 869 (10th Cir.

2000).

On appeal, Petitioners argue that (1) the State of Hawaii constructively pardoned

them by failing to transfer them out of the private facility when the State of Oklahoma

purchased it, (2) this case is distinguishable from the facts in Olim v. Wakinekona, 461

U.S. 238 (1983), because they (a) are being treated as inmates of the receiving jurisdiction

(Oklahoma), (b) received shorter sentences than life without parole and have an

expectation of release, (c) are not security threats, present no disciplinary issues, and

received no notice or pre-transfer hearing, (d) have endured an atypical and significant

hardship because they are unable to take advantage of therapeutic programming in Hawaii

necessary for parole consideration, and (e) pleaded guilty and were never advised by the

sentencing court of the possibility of such a transfer. They further argue that (3)
5

Oklahoma law, specifically, Okla. Stat. Ann. tit. 57, § 563.2(k), forbids Oklahoma

assuming custody over them, (4) no interstate agreement authorizes their transfer, (5) the

transfer contravenes Hawaii’s internal policy concerning notice of transfers, and (6) their

transfer to the mainland violates the Eighth Amendment because it amounts to

banishment.

In order to merit COAs, Petitioners must “make a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473,

484 (2000) (petitioner must “demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong”); see also Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). 

We do not think it is reasonably debatable, despite the distinguishing facts that

Petitioners claim undercut the holding in Olim, that inmates have no protected liberty

interest in the location of their confinement. Olim, 461 U.S. at 247-48; see also

Meachum v. Fano, 427 U.S. 215, 224-25 (1976). Thus, their incarceration in Oklahoma

following conviction and sentencing in Hawaii state court cannot, by itself, form the basis

for a due process challenge. Petitioners’ claim that Hawaii lost jurisdiction over them is

legally incorrect. In Blango v. Thornburgh, 942 F.2d 1487, 1490 (10th Cir. 1991) (per

curiam), we specifically rejected a theory that a transferring jurisdiction loses jurisdiction

over a transferred inmate: “Criminal jurisdiction over a state’s inhabitants remains with

the respective states and territories under whose jurisdiction the prisoners were originally
6

sentenced.” Thus, Petitioners were always incarcerated under authority of the State of

Hawaii.

Petitioners’ reliance on the constructive pardon rationale of Shields v. Beto, 370

F.2d 1003, 1005 (5th Cir. 1967), is misplaced. Shields involved a release of an inmate

mid-sentence and a wait of 28 years to reassert jurisdiction–facts plainly not applicable

here. See Milstead v. Rison, 702 F.2d 216, 218 (11th Cir. 1983) (per curiam) (limiting

Shields v. Beto). Petitioners were never surrendered to another state within the meaning

of Shields. Nor do Petitioners have an Eighth Amendment claim for banishment–they

have failed to identify an objectively serious risk to inmate health or safety, let alone a

culpable mental state on the part of prison officials. See Farmer v. Brennan, 511 U.S.

825, 837-38 (1994). What’s more, Olim specifically holds that confinement of a prisoner

in a state other than the one in which he or she was convicted does not constitute

banishment. Olim, 461 U.S. at 248. 

Finally, we decline to address Petitioners’ claims that their confinement in

Oklahoma violates the laws of that state. Even if Petitioners were correct in their reading

of Oklahoma law, a petition for habeas corpus brought under § 2241 must allege that a

petitioner is “in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). An allegation that Petitioners are in custody in violation

of the laws of the State of Oklahoma does not meet this standard.

For the foregoing reasons, we find that the district courts’ rationale for dismissal of
3Because we find Petitioners’ argument to be foreclosed, it was not an abuse of

discretion for the district court to refuse to appoint counsel for Petitioners. See Swazo v.

Shillinger, 23 F.3d 332, 333 (10th Cir. 1994).

7

Petitioners’ § 2241 petitions is not subject to debate among jurists of reason.3 We

therefore deny the applications for COAs and DISMISS these consolidated appeals. We

GRANT Ms. Soares IFP status.