*

This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicata and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

April 6, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHESTER L. BIRD,

Petitioner - Appellant,

v.

EDDIE WILSON, Warden, Wyoming

State Penitentiary, 

Respondent - Appellee.

No. 09-8073

(D. Ct. No. 2:09-CV-00133-CAB)

(D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance 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.

Chester L. Bird, a Wyoming state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal from the dismissal of his habeas petition brought

pursuant to 28 U.S.C. § 2241. We take jurisdiction under 28 U.S.C. § 1291, DENY Mr.

Appellate Case: 09-8073 Document: 01018397242 Date Filed: 04/06/2010 Page: 1 
- 2 -

Bird’s request for a COA, and DISMISS this appeal.

I. BACKGROUND

In 1994, Mr. Bird was convicted in Wyoming state court of kidnaping and sexual

assault and was sentenced to two concurrent life sentences. In March 2009, the Wyoming

Department of Corrections (“WDOC”) and the Virginia Department of Corrections

(“VDOC”) entered into a contract under the Interstate Corrections Compact (“ICC”)

whereby Mr. Bird was transferred from a WDOC facility to a VDOC facility. Mr. Bird

was transferred back to a WDOC facility that May.

In his § 2241 petition, Mr. Bird claims that Wyoming is not a party state to the

ICC; thus, the contract between the WDOC and the VDOC is void. He also contends that

the contract violates Wyoming law and that he has been deprived of due process.

II. DISCUSSION

A state petitioner may not appeal from a final order denying his § 2241 petition

without first obtaining a COA. 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d

862, 867 (10th Cir. 2000). When, as is the case here, the district court denies the petition

on the merits, we will issue a COA “only if the applicant has made a substantial showing

of the denial of a constitutional right.” Id. § 2253(c)(2).

Mr. Bird has not made this requisite showing. As the district court reasoned, the

contract was made pursuant to Wyo. Stat. Ann. § 25-1-105(e), which authorizes the

WDOC to “enter into contracts and agreements with other states . . . for the confinement

and maintenance of persons sentenced to the custody of the [WDOC] to serve a term of

Appellate Case: 09-8073 Document: 01018397242 Date Filed: 04/06/2010 Page: 2 
- 3 -

imprisonment in a state penal institution.” Moreover, we have recognized that “[n]either

the United States Constitution nor any federal law prohibits the transfer of an inmate from

one state to another.” Montez, 208 F.3d at 865–66. Finally, Mr. Bird identifies no

constitutionally protected liberty or property interest affected by his transfer. See

Boutwell v. Keating, 399 F.3d 1203, 1211 (10th Cir. 2005) (“In order to establish a due

process violation, [the claimant] must first demonstrate that he has been deprived of a

constitutionally-protected liberty or property interest.”). Accordingly, reasonable jurists

could not debate that Mr. Bird has failed to show a violation of his constitutional rights. 

III. CONCLUSION

Mr. Bird’s request for a COA is DENIED. We GRANT his request to proceed in

forma pauperis on appeal.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge

Appellate Case: 09-8073 Document: 01018397242 Date Filed: 04/06/2010 Page: 3