F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 7 2000 TENTH CIRCUIT PATRICK FISHER Clerk

JOHN ELDON REINHOLD,

Petitioner-Appellant,

v. No. 99-1559 (District of Colorado) MARK McKINNA, Warden and THE (D.C. No. 99-Z-1355) ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

After examining the briefs and 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.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. This case is before the court on John Reinhold’s pro se application for a

certificate of appealability (“COA”). Reinhold seeks a COA so that he can appeal

the district court’s denial of his 28 U.S.C. § 2241 petition. In his petition,

Reinhold asserted that his transfer from a state-operated prison in Wyoming to a

private prison in Colorado violated his rights under the United States Constitution

and was at odds with Wyoming and Colorado law. 1 In a case raising identical

issues to those raised here, this court recently held as follows: (1) claims of state

law violations relating to transfers such as those at issue here are not cognizable

in a federal habeas corpus action and, in any event Wyoming and Colorado law

specifically provide for such transfers; and (2) the Constitution does not prohibit

a state from confining a convicted prisoner in a private prison rather than a state

owned facility, regardless of the location of that private prison; and (3) state

prisoners proceeding pursuant to § 2241 must obtain a COA in order to appeal the

1 After he had already filed his § 2241 petition, Reinhold filed a 28 U.S.C. § 2254 petition which reasserted the transfer claim and raised an ineffective assistance of counsel claim. The district court dismissed the ineffective assistance of counsel claim on exhaustion grounds and dealt with the transfer claim in resolving Reinhold’s § 2241 petition. In Reinhold’s “Motion for Issuance of Certificate of Probable Cause for Appeal,” which the district court treated as a request for a COA, he indicated that he was withdrawing the § 2254 petition and did not seek to raise any issues on appeal relating to that petition. Reinhold’s application for a COA and brief on appeal are limited to the transfer claim. Accordingly, the district court’s treatment of Reinhold’s § 2254 petition is not before this court.

-2- denial of relief by the district court. See Montez v. McKinna, No. 99-1347, slip

op. at 5, 6, 11 (10th Cir. April 3, 2000).

Montez is dispositive of Reinhold’s claims. Accordingly, this court

DENIES Reinhold’s request for a COA and DISMISSES this appeal. 2

ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge

2 Appellant’s Motion for Leave to Proceed In Forma Pauperis is denied.

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