* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### OCT 5 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WESLEY MAXWELL, Petitioner-Appellant,

v. No. 00-2193 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. (D.C. No. CIV-00-582-JP/LFG) (D.N.M.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.2

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). T he case is therefore ordered submitted without oral argument. Wesley Maxwell, a state inmate appearing pro se andin forma pauperis, seeks a certificate of appealability to appeal the district court’s dismissal of his habeas corpus action. We exercise jurisdiction pur suant to 28 U.S.C. § 1291, deny a certificate of appealability, and dismiss th e appeal. The facts and issues in this case are identical to those in Rael v. Williams , 2000 WL 1051845 (10th Cir. July 31, 2000). Maxwell filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challeng ing, on federal constitutional and state law grounds, his transfer to and incarcer ation in a privately-run prison facility in Lea County, New Mexico. The district c ourt dismissed the petition without prejudice due to Maxwell’s failure to exhau st state court remedies. A state prisoner may appeal the denial of a § 2241 petition only if “a circuit justice or judge” issues a certificate of appealabi lity. 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000). To obtain a certificate of appealability under § 2253(c), a habeas prisonermust make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing requires a demonstration that reasonable jurists could debate whether the3

petition should have been resolved in a different m anner. Slack v. McDaniel , 120 S. Ct. 1595, 1603-04 (2000). Maxwell has failed to make this showing. First, hi s state law claims are not cognizable in a federal habeas action. See 28 U.S.C. § 2241(c)(3); Rael , 2000 WL 1051845 at *1; Montez , 208 F.3d at 865. To the extent he challenges his transfer per se to a private facility or his placem ent in the facility pursuant to contract, such a claim is not cognizable under sect ion 2241. See Rael , 2000 WL 1051845, at *1; Montez , 208 F.3d at 865-66. Finally, even if Maxwell rai ses cognizable federal constitutional claims, the distr ict court properly dismissed his petition without prejudice for failure to exhaust. SeeO’Sullivan v. Boerckel , 526 U.S. 838, 842 (1999) (“Before a federal court may g rant habeas relief to a state prisoner, the prisoner must exhaust his remedies instate court. In other words, the state prisoner must give the state courts an op portunity to act on his claims before he presents those claims to a federal court in a habeas petition.”); accord Brown v. Shanks , 185 F.3d 1122, 1124 (10th Cir. 1999). We DENY Maxwell’s request for a certificate of appe alability and DISMISS the appeal. The mandate shall issue forthw ith. Entered for the Court Mary Beck Briscoe Circuit Judge