F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 13 2000
TENTH CIRCUIT PATRICK FISHER
Clerk
MARTIN EDWARD CAMPBELL,
Petitioner-Appellant,
v.
JOE WILLIAMS, Warden, Lea County
Correctional Facility; GARY
JOHNSON, Governor, State of New
No. 00-2126, 00-2181
Mexico; ROBERT PERRY, Secretary
(D.C. No. CIV-00-189-BB/LFG)
of Corrections; NEW MEXICO
(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.
ORDER AND JUDGMENT *
*
After examining appellant’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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.
Martin Edward Campbell appeals the dismissal, without prejudice, of his
habeas corpus action brought pursuant to 28 U.S.C. § 2241 for failure to exhaust
state court remedies.
Mr. Campbell challenges his incarceration in the Lea County Correctional
Facility (LCCF), a privately-run prison facility in New Mexico, on the grounds
that it violates both state law and his constitutional rights. Mr. Campbell claims
he is a third-party beneficiary of the contract between the New Mexico
Corrections Department (NMCD) and Lea County, as well as the contract between
Lea County and Wackenhut Corrections Corporation (Wackenhut), the company
that operates LCCF. He maintains his constitutional rights have been violated
because Lea County and Wackenhut have breached these contracts by failing to
ensure the proper classification of inmates and failing to provide a sufficient
number of properly trained and adequately experienced staff. Mr. Campbell
alleges that the Defendants, Governor Gary Johnson, Secretary of Corrections
Robert Perry, and the NMCD, therefore violated the terms of N.M. Stat. Ann. §
31-20-2(G) by failing to adequately comply with NMCD standards for housing
inmates at LCCF. As a result, he alleges that he has suffered unspecified, but
serious and irreparable harm. Finally, Mr. Campbell claims that Lea County is
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not “in the business of providing correctional or jail services to government
entities.” Thus, he believes the Lea County contract to provide such services
violates N.M. Stat. Ann. § 33-1-17(B) and also infringes upon his rights under the
First, Eighth, and Fourteenth Amendments of the United States Constitution.
Mr. Campbell filed a pro se petition in the New Mexico district court for
writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking an order vacating his
conviction and sentence and granting his unconditional release. The magistrate
judge issued a sua sponte show cause order for Mr. Campbell to explain why the
petition should not be dismissed for failure to exhaust state remedies. After
consideration of Mr. Campbell’s response to the show cause order, the district
court dismissed the petition without prejudice. Mr. Campbell appealed. The
district court subsequently denied his application to proceed in forma pauperis on
appeal, and he appealed that order as well. He also seeks a certificate of
appealability pursuant to 28 U.S.C. § 2253(c). 1
In Montez v. McKinna, 208 F.3d 862, 864-65 (10th Cir. 2000), this court
held that a habeas petition challenging a transfer to a privately run prison may be
cognizable under § 2241. We made clear that a state habeas petitioner is
1
The petition and appeals in this case were filed subsequent to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore,
AEDPA applies and Mr. Campbell must obtain a certificate of appealability in
order to proceed on appeal.
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generally required to exhaust state remedies when his action is brought under §
2241. See id. at 866. 2 We also held that a certificate of appealability is required
for a § 2241 appeal. See id. at 866-69. To obtain a certificate of appealability, a
habeas petitioner must make a substantial showing of the denial of a
constitutional right. See 18 U.S.C. § 2253(c)(2). This showing requires a
demonstration that reasonable jurists could debate whether the petition should
have been resolved in a different manner. See Slack v. McDaniel, 120 S. Ct.
1595, 1603-04 (2000). We conclude Mr. Campbell has failed to make this
showing.
First, Mr. Campbell’s state law claims are not cognizable in a federal
habeas actions. See 28 U.S.C. § 2241(c)(3); Montez, 208 F.3d at 865. Further, to
the extent Mr. Campbell challenges his transfer per se to a private facility
pursuant to contract, such a claim is not cognizable under § 2241. See id. at 865-
66; accord Rael v. Williams, No. 00-2145, 2000 WL 1051845 (10th Cir. July 31,
2000) (fact that inmate is transferred to, or must reside in, a private prison does
not raise a federal constitutional claim). 3 Finally, to the extent Mr. Campbell
raises cognizable federal constitutional claims, the district court properly
2
The prisoner in that case had failed to exhaust his state remedies, but we
nevertheless rejected his challenge on the merits, relying upon 28 U.S.C. §
2254(b)(2) as analogous authority.
3
We note that the district court did not have the benefit of our decisions in
Montez and Rael, which we decided after the district court dismissed the petition.
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dismissed his petition without prejudice for failure to exhaust. “Before a federal
court may grant habeas relief to a state prisoner, the prisoner must exhaust his
remedies in state court. In other words, the state prisoner must give the state
courts an opportunity to act on his claims before he presents those claims to the
federal courts in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); accord Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999).
Accordingly, we DENY Mr. Campbell’s request for a certificate of
appealability and DISMISS this appeal. Mr. Campbell’s application to proceed on
appeal in forma pauperis is DENIED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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