Montez v. McKinna

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 3 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

LORENZO MONTEZ,
Petitioner-Appellant,
v. No. 99-1347
MARK MCKINNA,
Respondent-Appellee.

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

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

1
The respondent to this appeal, Mark McKinna, is warden of the private
Crowley County Correctional Facility in Colorado where Montez is currently
incarcerated. This court assumes for purposes of resolving this appeal that
McKinna is properly named as respondent and a Wyoming correctional official is
not an indispensable party. We need not definitively resolve these questions,
however, because their resolution bears only on whether Montez’s habeas petition
stated a claim upon which relief could be granted; their resolution does not affect
the jurisdiction of either this court or the district court. Cf. Thunder Basin Coal
Co. v. Southwestern Pub. Serv. Co., 104 F.3d 1205, 1211 n.4 (10th Cir. 1997)
(“The issue of indispensability under Rule 19(b) is not a jurisdictional
question.”).

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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

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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

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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

2
It is also conceivable that a prisoner could bring a civil rights action under
42 U.S.C. § 1983 challenging conditions of confinement occasioned by a transfer
to a private correctional facility. See Pischke v. Litscher, 178 F.3d 497, 500 (7th
Cir.) (holding that § 1983, not habeas corpus, is proper means for challenging
constitutionality of state statute that authorizes transfer of state prisoners to
private prisons in other states), cert. denied, 120 S. Ct. 380 (1999).

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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

3
Barr is entirely consistent with our decision in Frazier v. Dubois, 922 F.2d
560 (10th Cir. 1990), which held that while a prisoner had no constitutional right
not to be transferred, he did have a constitutional right not to be transferred in
retaliation for the exercise of his First Amendment rights. Id. at 561-62. No such
issue is raised here.
4
The Seventh Circuit’s recent decision in Pischke, dismissing claims
brought by Wisconsin state prisoners challenging the state’s authority to transfer
them to private facilities, supports a conclusion that Montez’s claims lack merit.
We agree with the Seventh Circuit’s reasoning that no provision of the
Constitution would “be violated by the decision of a state to confine a convicted
(continued...)

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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

4
(...continued)
prisoner in a prison owned by a private firm rather than by a government,”
regardless of its location. Pischke, 178 F.3d at 500 (citing Olim and cases that
assume the propriety of such confinement for the proposition that “[a] prisoner
has a legally protected interest in the conduct of his keeper, but not in the
keeper’s identity”). Assuming that a private prison meets constitutional
requirements for treatment of prisoners, a question not raised here, this court fails
to see how confinement in a private prison, be it in the prisoner’s home state or
another state, is not confinement “within the normal limits or range of custody
which the conviction has authorized the State to impose.” Meachum, 427 U.S. at
225.

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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

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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

process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A); see Stringer v.

Williams, 161 F.3d 259, 262 (5th Cir. 1998) (“[Section] 2253 clearly does not

encompass challenges to federal detention under § 2241. Just as clearly, however,

§ 2253 does encompass challenges to state detention under § 2241, since ‘the

detention complained of arises out of process issued by a State court.’”). 6

5
While at least two unpublished orders and judgments by this court have
noted that a certificate of appealability is not required for a state prisoner to
appeal the denial of a petition brought pursuant to § 2241, none have discussed
the particular requirements of § 2253 in relation to state prisoners and none are
binding on this panel. See Cooper v. McKinna, No. 99-1437, 2000 WL 123753, at
*1 n.1 (10th Cir. Feb. 2, 2000) (unpublished disposition); Cooper v. Schear, Nos.
98-1158, -1159, 1999 WL 14047, at *3 n.6 (10th Cir. Jan. 15, 1999) (unpublished
disposition). But see Haney v. Tulsa County Dist. Court, No. 96-5246, 1997 WL
741159, at *1 (10th Cir. Nov. 28, 1997) (unpublished disposition) (denying
certificate of appealability to state § 2241 prisoner and citing language of
§ 2253(c)(1)(A)).
6
The dissent cites Stringer for the proposition that state prisoners
(continued...)

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 6
(...continued)
proceeding pursuant to § 2241 do not necessarily need to obtain a COA in order
to appeal the denial of habeas relief. See Dissenting Op. at 4. In particular, the
dissent would read Stringer as stating the following rule: a federal prisoner
challenging a detainer lodged by a state agency need not obtain a COA in order to
appeal the denial of habeas relief because the detention complained of does not
arise out of process issued by a state court. See id. (citing Stringer, 161 F.3d at
261); cf. id. at 3 (asserting that a state prisoner challenging a detainer filed by a
state agency must obtain a COA because the detention complained of does arise
out of process issued by state court).
The rule hinted at in Stringer and advocated in the dissent is inconsistent
with the Supreme Court’s decision in Braden v. 30th Judicial Circuit Court of
Ky., 410 U.S. 484 (1973). In Braden, the Supreme Court held that a state prisoner
wishing to challenge a detainer filed by a different state could file a habeas
petition either in the current state of incarceration or in the state filing the
detainer. Id. at 494-501. In so holding, the Court reiterated that “[t]he writ of
habeas corpus does not act upon the prisoner who seeks relief, but upon the
person who holds him in what is alleged to be unlawful custody.” Id. at 495-96
(citing Wales v. Whitney, 114 U.S. 564, 574 (1885)). Relating this ancient rule of
law to the use of a habeas petition to challenge a detainer, the Supreme Court
noted that critical developments in the Court’s jurisprudence “enabled a petitioner
held in one State to attack a detainer lodged against him by another State. In such
a case, the State holding the prisoner in immediate confinement acts as agent for
the demanding State, and the custodian State is presumably indifferent to the
resolution of the prisoner’s attack on the detainer.” Id. at 498-99. In light of the
Supreme Court’s decision in Braden, several courts, including this court in an
unpublished opinion, have held that a habeas petitioner challenging a detainer is
in the custody of the state filing the detainer. See, e.g., Jones v. City of Jackson,
No. 98-60013, 2000 WL156093, at *3 (5th Cir. Feb. 14, 2000) (holding that in
Braden “the Supreme Court concluded that a state placing a detainer on the
petitioner who was incarcerated in another jurisdiction had “custody” of him for
habeas corpus purposes”); Higgins v. Rhode Island, No. 98-1040, 1998 WL
1085812, at *1 (1st Cir. Oct. 8, 1998) (unpublished disposition) (citing Braden
for proposition that habeas petitioner was “in custody” pursuant to the detainer);
Ball v. Scott, No. 93-3345, 1994 WL 562023, at *1 (10th Cir. Oct. 13, 1994)
(unpublished disposition ) (“The Court has found a prisoner serving a sentence in
one state, against whom a detainer had been filed with his jailers by another state,
(continued...)

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 That conclusion does not, however, necessarily resolve the question of

whether, under the particular facts of this case, Montez needs a COA in order to

appeal the district court’s denial of his habeas petition. This court recognizes that

§ 2253(c)(1)(A), like many of the provisions of the AEDPA, is not a model of

clarity. Cf. Lindh v. Murphy, 521 U.S. 320, 336 (1997) (“[I]n a world of silk

purses and pigs’ ears, [AEDPA] is not a silk purse of the art of statutory

drafting.”) . We are mindful that it is possible, by viewing § 2253(c)(1)(A) in

isolation, to nitpick its text and assume that Montez does not need a COA because

his challenge runs not to the fact of detention but, instead, to the execution of his

state sentence. See 28 U.S.C. § 2253(c)(1)(A) (providing that a COA is necessary

where “the detention complained of” arises out of process issued by a state

6
(...continued)
sufficiently ‘in custody’ pursuant to the detainer such that he could bring a habeas
attack on the outstanding charge underlying the detainer.”).
As Braden and the other cases cited above make clear, when a habeas
petitioner challenges a detainer lodged by a state agency, that challenge is
directed exclusively at the validity of the detainer itself; the current instance of
detention is simply not implicated. See Braden, 410 U.S. at 498-99 (holding that
custodian state is merely “indifferent” agent of demanding state). Accordingly,
the key question is whether the detainer challenged arises out of process issued by
state court; a petitioner’s current place of detention is irrelevant. Thus, despite
the dissent’s assertion to the contrary, a federal prisoner seeking to challenge a
detainer arising out of process issued by a state court must obtain a COA in order
to appeal a district court order denying relief. Conversely, a state prisoner
seeking to challenge a detainer filed by a federal agency does not need a COA to
proceed on appeal. See 28 U.S.C. § 2253(c)(1).

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court). 7 Such a construction, however, ignores the important differences in the

text between subsections (A) and (B) of § 2253(c)(1).

If Congress had intended to restrict the COA requirement to state prisoner

petitions brought pursuant to § 2254, it would have employed exactly the same

language that it chose with regard to federal prisoners in § 2253(c)(1)(B).

Instead, it chose to use much broader language, mandating that state prisoners

must obtain a COA whenever they are challenging any aspect of their detention;

there is simply nothing in § 2253(c)(1)(A) limiting its COA requirements to

challenges involving the fact of conviction. Compare § 2253(c)(1)(A) (mandating

that state prisoners obtain a COA anytime “the detention complained of arises out

of process issued by a State court) with § 2253(c)(1)(B) (mandating that federal

prisoners obtain a COA when those prisoners are appealing from “the final order

7
So construed, a state habeas petitioner would only need to obtain a COA
when he was complaining about the fact of detention (i.e., all § 2254 petitions and
a very narrow group of § 2241 petitions); he would never need a COA when he
was complaining about the incidents or circumstances of incarceration (i.e., the
overwhelming majority of § 2241 petitions). Thus, the functional result of such a
construction is that § 2253(c)(1)(A) would only be applicable to § 2254 petitions
and rarely applicable to § 2241 petitions. See McIntosh v. United States Parole
Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997) (noting that a petition under §
2241 attacks the execution of a sentence, while a petition under § 2254 attacks the
validity of a conviction or sentence). In our view, such an approach
impermissibly rewrites § 2253(c)(1), which actually requires a COA whenever
“the detention complained of arises out of process issued by a State court,” to
read as follows: a COA is required whenever a habeas petition challenges “the
[fact of] detention [and the detention] complained of arises out of process
issued by a state court.”

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in a proceeding under section 2255”). Accordingly, this court reads §

2253(c)(1)(A) as applying whenever a state prisoner habeas petition relates to

matters flowing from a state court detention order. This includes not only

challenges to the validity of a state court conviction and sentence under § 2254,

but also challenges related to the incidents and circumstances of any detention

pursuant to state court process under § 2241. The more onerous burden on state

prisoners is consistent with notions of comity and deference to state adjudicatory

procedures embodied throughout the AEDPA and gives effect to the disparate

language employed by Congress in § 2253(c)(1)(A) and (B). It is also consistent

with the purpose of the AEDPA: “curbing the abuse of the statutory writ of

habeas corpus.” H.R. Conf. Rep. No. 104-518, at 111 (1996), reprinted in 1996

U.S.C.C.A.N. 924, 944. Finally, we note that the Seventh Circuit, albeit with

little discussion, denied a COA and dismissed the appeal in a case factually

indistinguishable from the case at hand. See Pischke v. Litscher, 178 F.3d 497,

501 (7th Cir.), cert. denied, 120 S. Ct. 380 (1999).

Montez is entitled to a COA only upon making a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Montez can make

such a showing by demonstrating that the issues he seeks to raise on appeal are

deserving of further proceedings, subject to a different resolution on appeal, or

reasonably debatable among jurists of reason. See Barefoot v. Estelle, 463 U.S.

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880, 893 n. 4 (1983). For those reasons set out above, Montez cannot satisfy that

burden. Accordingly, this court DENIES Montez’s request for a COA and

DISMISSES this appeal. Montez’s application to proceed on appeal in forma

pauperis is DENIED.

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No. 99-1347, MONTEZ v. MCKINNA

McKAY, Circuit Judge, concurring in part and dissenting in part:

I join the majority’s opinion in all respects save the question concerning a

certificate of appealability. While I agree that there are important differences in

the text of subsections (A) and (B) of 28 U.S.C. § 2253(c)(1), I disagree with the

court’s sweeping interpretation of § 2253(c)(1)(A).

The practical (and admitted) effect of the majority’s construction of

§ 2253(c)(1)(A) is that all appeals from habeas petitions brought by state

prisoners require a COA. The majority reasons that the language of

§ 2253(c)(1)(A) providing that a COA is necessary where “the detention

complained of arises out of process issued by a State court” applies to all state

habeas petitions relating to “matters flowing from a state court detention order,”

including both “challenges to the validity of a state court conviction and sentence

under § 2254 . . . [and] challenges related to the incidents and circumstances of

any detention pursuant to state court process under § 2241.” The majority claims

that a different interpretation would mean that § 2253(c)(1)(A) would apply only

to § 2254 petitions and rarely would apply to § 2241 petitions, a result that would

be contrary to the intent of AEDPA. I am not persuaded by this reasoning.

First, if Congress had intended for all state habeas petitioners to obtain a

COA, it simply would have stated in § 2253(c)(1)(A) that a COA is needed to
appeal a final order in any habeas corpus proceeding brought by a state prisoner.

Instead, it chose to use language mandating that a state prisoner obtain a COA

only when “the detention complained of arises out of process issued by a State

court.” 28 U.S.C. § 2253(c)(1)(A) (emphasis added). “Conspicuously absent

from the statute is any mention of appeals in § 2241 proceedings.” Ojo v. INS,

106 F.3d 680, 681 (5th Cir. 1997).

It is arguable that any habeas action brought by a state petitioner challenges

detention arising out of process issued by a state court because a prisoner is

incarcerated in the first place as a result of a state court judgement. This

argument, however, ignores several important distinctions between § 2241 and

§ 2254 proceedings, including the nature of the complaint, where jurisdiction lies

and who is named as respondent, and pre- versus post-judgment petitions. See,

e.g., McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir.

1997) (noting that a § 2254 petition challenges the validity of a conviction or

sentence while a § 2241 petition attacks the execution of a sentence); Bradshaw v.

Story, 86 F.3d 164, 166 (10th Cir. 1996) (stating that a petition under § 2241

“must be filed in the district where the prisoner is confined”); Dickerson v.

Louisiana, 816 F.2d 220, 224 (5th Cir. 1987) (noting that § 2254 “applies only to

post-trial situations and affords relief to a petitioner ‘in custody pursuant to

judgment of a state court’” (quoting 28 U.S.C. § 2254)).

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 In addition, the majority’s analysis overlooks the fact that not all § 2241

proceedings complain about the incidents or circumstances of incarceration. A

state petitioner may properly bring a § 2241 proceeding challenging detention

arising out of state court process, such as a whole host of pretrial petitions. See,

e.g., Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488-90,

498 (1973) (holding that Alabama prisoner under Kentucky indictment may file a

habeas action under § 2241 seeking to enforce his constitutional right to a speedy

trial); Higgins v. Rhode Island, 187 F.3d 622, 1998 WL 1085812, **1 (1st Cir.

1998) (noting that state prisoner may challenge detainer by bringing a pretrial

habeas petition under § 2241, “which empowers a district court to issue a habeas

writ before a judgment is rendered in a criminal proceeding”); Santamaria v.

Horsley, 133 F.3d 1242, 1243 (9th Cir.) (reviewing pretrial habeas petition under

§ 2241(c)(3)), cert. denied, U.S. , 119 S. Ct. 68 (1998); Allen v. Robinson,

986 F.2d 1412, 1993 WL 46883 (4th Cir. 1993) (noting availability of pretrial

habeas relief under § 2241); Palmer v. Clarke, 961 F.2d 771, 774 (8th Cir. 1992)

(confirming that “federal district courts can entertain pretrial habeas petitions

[under § 2241] in which the petitioner asserts [that] an impending state trial

violates the Double Jeopardy Clause”); Dickerson, 816 F.2d at 224 (holding that

inmate’s pretrial habeas petition is properly brought under § 2241 because he is

not in custody pursuant to judgment of a state court).

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 These cases showing § 2241’s broader application are entirely consistent

with the Fifth Circuit’s decision in Stringer v. Williams, 161 F.3d 259, 262 (5th

Cir. 1998), which the majority cites to support its analysis. In Stringer, a parole

board revoked Mr. Stringer’s parole after it found that he committed two of four

offenses for which he was indicted. Mr. Stringer filed a § 2241 petition attacking

the state’s prosecution of him on those four offenses. The court explained that

“[o]nly if [Mr. Stringer is being held as a pretrial detainee] would ‘the detention

complained of arise[] out of process issued by a State court.’” Id. at 261. The

court then assumed that Mr. Stringer was a pretrial detainee and, on the basis of

that assumption, held that he must obtain a COA to appeal the denial of his

§ 2241 petition. See id. at 262. This assumption was critical to the court’s

holding because as a pretrial detainee Mr. Stringer was challenging detention

arising out of state court process, i.e., the indictment. If he were in custody

pursuant to the revocation of parole, his detention would not arise out of state

court process and no certificate of appealability would be required. See id. at

261-62 (indicating that petitioner’s detention would arise out of process issued by

a state court under § 2253 if he were a pretrial detainee but not if he were

detained pursuant to the revocation of parole). Thus, the majority is correct in

citing Stringer for that proposition that Ҥ 2253 does encompass challenges to

state detention under § 2241,” id. at 262, but that proposition is true only where

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the detention at issue in a particular case arises out of state court process. In

light of these considerations, I would hold that a state prisoner proceeding under

§ 2241 must obtain a certificate of appealability where “the detention complained

of arises out of process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A).

Such a holding demands that the court examine on a case-by-case basis whether

the detention arises out of state court process, a result that does not contradict

Congress’ intent to curb abuse of habeas corpus relief. Under some

circumstances, Congress can deny access to the courts. But where it has not

explicitly done so, access to the courts is too precious for us to do it for Congress.

Because I disagree with the majority’s construction of § 2253(c)(1)(A), I

also disagree about the judgment in this case. It is not at all clear that the

detention complained of by Mr. Montez arises out of process issued by a state

court. Although he is in custody pursuant to a state court judgment, the particular

detention Mr. Montez complains of in this habeas petition is his transfer from a

state-operated prison to private correctional facilities. This decision was “issued”

by a state department of corrections official or warden, not by any state court

process. I therefore would hold that Mr. Montez does not need a certificate of

appealability to appeal the district court’s order in this habeas corpus proceeding

because the detention complained of does not “arise[] out of process issued by a

State court.” Id. Accordingly, I would DENY the request for a certificate of

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appealability as moot and AFFIRM the judgment of the district court denying

habeas corpus relief and dismissing the claims.

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