Montez v. McKinna

• Decision Date: 03 April 2000
• Docket Number: No. 99-1347,99-1347
• Parties: (10th Cir. 2000) LORENZO MONTEZ, Petitioner-Appellant, v. MARK MCKINNA, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 862

208 F.3d 862 (10th Cir. 2000)

LORENZO MONTEZ, Petitioner-Appellant, v. MARK MCKINNA, Respondent-Appellee.

No. 99-1347

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 3, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 99-Z-923)

[Copyrighted Material Omitted]

Submitted on the briefs:

Lorenzo Montez, pro se.

Before TACHA, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

After examining petitioner Lorenzo Montez's brief and the 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Proceeding pro se, Montez seeks to appeal the district court's denial of his habeas corpus petition. Incarcerated in a private correctional facility in Colorado, Montez filed a petition for writ of habeas corpus under 28 U.S.C. 2241. In the petition, Montez claimed that his transfers from a Wyoming state-operated prison to a private Texas correctional facility and from the Texas facility to a private Colorado correctional facility violated the Western Interstate Corrections Compact, state laws, and numerous federal constitutional provisions and laws including the Extradition Clause, the Interstate Commerce Act, the Interstate Commerce Clause, the Supremacy Clause, and the Fifth and Fourteenth Amendments.¹

The district court treated the petition as arising under 28 U.S.C. 2254, determined that Montez had failed to exhaust state remedies, and dismissed the claims on their merits pursuant to 2254(b)(2). The court also denied Montez a certificate of appealability ("COA") and denied him leave to proceed on appeal in forma pauperis. Montez renews his application to proceed on appeal in forma pauperis and asks this court for a COA. He also requests a ruling on whether it is necessary for him to exhaust his state remedies and, if so, whether he may "do so without injury to his case."

As a threshold matter, the district court seemed to conclude that the action must be construed under 2254 simply because Montez "is challenging his custody pursuant to the judgment of a state court." Although the typical route is generally 2254, a state prisoner may bring a habeas action under 2241 or 2254. See 28 U.S.C. 2241(c)(3), (d); Cooper v. McKinna, No. 99-1437, 2000 WL 123753, at *1 (10th Cir. Feb. 2, 2000) (unpublished disposition) (holding that petitioner challenging his transfer to a private out-of-state prison "properly filed his petition pursuant to 2241"); Ayala v. Department of Corrections, No. 99-1401, 1999 WL 1020847, at *1 (10th Cir. Nov. 10, 1999) (unpublished disposition) (noting puzzlement at "district court's seeming conclusion that . . . petition must ipso facto arise under 2254 simply because [petitioner] is in state custody"); Cooper v. Schear, Nos. 98-1158, -1159, 1999 WL 14047, at *1 (10th Cir. Jan. 15, 1999) (unpublished disposition) (noting and implicitly approving fact that state prisoner was proceeding pursuant to both 2241 and 2254); cf. Jones v. Cunningham, 371 U.S. 236, 236, 241 (1963) (holding that state prisoner on parole was "in custody" and district court had jurisdiction over his habeas action under 2241).

Nevertheless, it is difficult to tell whether the instant action is properly brought under 2254 as a challenge to the validity of Montez's conviction and sentence or pursuant to 2241 as an attack on the execution of his sentence. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Analyzing whether a 2241 petition brought by a federal prisoner was a civil action for purposes of the Prison Litigation Reform Act, this court stated in McIntosh that "[a] habeas corpus proceeding 'attacks the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement.'" 115 F.3d at 812 (citation omitted). Analytically, Montez's petition seems to be a hybrid. Montez attacks the execution of his sentence as it affects the fact or duration of his confinement in Colorado. Such an attack, focusing on where his sentence will be served, seems to fit better under the rubric of 2241. Another component of the petition, which could conceivably come under 2254, attacks the continued validity of his sentence imposed by Wyoming in light of the allegedly unconstitutional transfers.² If construed as a 2254 petition, the action should have been filed in the district in which Montez was convicted and sentenced, i.e., the District of Wyoming, and the District Court for the District of Colorado would have no jurisdiction. If construed as a 2241 petition, it was properly filed in the District of Colorado, the district in which Montez is confined. See Bradshaw, 86 F.3d at 166.

Mindful of these principles, and having reviewed Montez's application for a COA, his appellate brief, the district court's orders, and the entire record on appeal, this court treats the petition as one arising under 2241. Although a remand to the district court for reconsideration of Montez's claims under 2241 would generally be the appropriate course, several considerations counsel against such an approach in this case.

First, as noted by the district court, Montez's claims of state law violations are not cognizable in a federal habeas action. See 28 U.S.C. 2241(c)(3), 2254(a). Furthermore, the claims asserted by Montez are without merit. This court has determined that "[n]either the United States Constitution nor any federal law prohibits the transfer of an inmate from one state to another." Barr v. Soares, No. 99-1003, 1999 WL 454364, at *1 (10th Cir. July 6, 1999) (unpublished disposition) (citing Olim v. Wakinekona, 461 U.S. 238, 245-48 (1983)). In Barr, which involved a challenge to the transfer of a prisoner between Colorado and Texas, we held that neither Colorado law nor the Western Interstate Corrections Compact, which authorized such a transfer, violated the petitioner's constitutional rights.³ Similarly, Montez has not identified any federal law or statute that prohibits the transfer of an inmate from one state to a private facility in another state. In fact, as the district court explained, Wyoming and Colorado statutes specifically provide for such transfers. See Wyo. Stat. Ann. 25-1-105(e); Colo. Rev. Stat. 17-1-104.5, -105(1)(f). Moreover, there is no federal constitutional right to incarceration in any particular prison or portion of a prison. See Twyman v. Crisp, 584 F.2d 352, 355-56 (10th Cir. 1978) (citing Meachum v. Fano, 427 U.S. 215, 226-27 (1976)).⁴ Finally, because the district court's determination that Montez's claims are unsupported by the law is clearly correct, it would be a waste of judicial resources to remand this case to the district court.

A question concerning exhaustion remains. A habeas petitioner is generally required to exhaust state remedies whether his action is brought under 2241 or 2254. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (requiring state prisoner bringing federal habeas corpus action to show that he exhausted available state remedies); see also Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992) (concerning a 2254 petition); Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986) (concerning a 2241 petition). Montez asks this court to hold his "petition in abeyance while [he] exhausts his state remedies." This court recognizes that neither our case law nor the language of 2241 settles whether a federal court may deny on the merits an unexhausted 2241 petition as 2254(b)(2) expressly permits. Nevertheless, because no credible federal constitutional claim is raised in Montez's petition, we conclude it is not inconsistent with 2241 or our habeas corpus precedent to follow the policy of 2254(b)(2) in this case. Accordingly, the district court did not err in denying Montez's petition on the merits and this court denies, for those reasons set out above, his request to abate these proceedings while he exhausts his state remedies.

As a final matter, this court addresses Montez's request for a COA. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a COA is needed to appeal either "the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court" or "the final order in a proceeding under section 2255." 28 U.S.C. 2253(c)(1). While this court has held that a federal prisoner proceeding under 2241 does not need a certificate of appealability to appeal a district court's denial of the petition, see McIntosh, 115 F.3d at 810 n.1 (citing Bradshaw, 86 F.3d at 165-66), it is not clear that the same is true of a state prisoner proceeding under 2241.

Section 2253(c)(1)(A) is written broadly, mandating that a COA is required in appeals from final habeas corpus orders where "the detention complained of arises out of process issued by a State court." Unlike 2253(c)(1)(B), which specifically states that a certificate of appealability is only required for challenges by federal prisoners under 2255, 2253(c)(1)(A)'s COA requirements are not restricted to challenges by state prisoners under 2254. In addition, because the cases holding that a COA is not required for 2241 appeals involved federal prisoners, they do not control the disposition of this case.⁵ See, e.g., Murphy v. United States, 199 F.3d 599, 601 n.2 (2d Cir. 1999); Sugarman v. Pitzer, 170 F.3d 1145, 1146 (D.C. Cir. 1999); Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997); Bradshaw, 86 F.3d at 166. Accordingly, consistent with the plain language of 2253(c)(1)(A), this court holds that a state prisoner must obtain a COA to appeal the denial of a habeas petition, whether such petition was filed pursuant to 2254 or 2241, whenever "the detention complained of [in the petition] arises out of...