Crosby v. Neet

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 18, 2000
• Docket: 00-1020
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 18 2000

TENTH CIRCUIT PATRICK FISHER Clerk

DAVID J. CROSBY,

Petitioner-Appellant,

v. No. 00-1020 (D.C. No. 99-Z-1994) GARY NEET, Warden; THE (Colorado) ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, 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 cause 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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. David J. Crosby, a state prisoner appearing pro se, appeals the denial of his

petition for habeas corpus relief and seeks a certificate of appealability. Mr.

Crosby was convicted in Colorado and began serving his sentence there. He was

later transferred to two prisons in Texas before his transfer back to a state

correctional facility in Colorado. He filed a petition for habeas corpus relief

under 28 U.S.C. §§ 1651, 2241, 2243, and 2254, claiming that his transfer to

Texas violated his constitutional right to due process and that the State of

Colorado lost jurisdiction over him as a result of the transfer. The district court

denied his claims and his request for a certificate of appealability. In order to

obtain a certificate of appealability from this court, Mr. Crosby must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2).

The gist of Mr. Crosby’s argument is his assertion that the transfers were in

violation of state law and that as a result he was denied his constitutional right to

due process. This court recently considered and rejected the claim that a transfer

such as the one challenged here violates a prisoner’s constitutional rights. See

Montez v. McKinna, 208 F.3d 862 (10th Cir. 2000). We pointed out there that

the transfer of an inmate from one state to another violates neither Colorado nor

federal law. Id. at 865-66. We further noted that an inmate has no

constitutionally protected right to serve his sentence at any particular prison. Id.

-2- Because Mr. Crosby thus has no constitutional interest entitled to due process

protection, his due process claim is without merit. 1

Mr. Crosby also contends the state of Colorado lost jurisdiction over him

by the transfers. To the extent this claim is based on the Constitution, it is

without merit. See Blango v. Thornburgh, 942 F.2d 1487, 1490 (10th Cir. 1991)

(“Criminal jurisdiction over a state’s inhabitants remains with the respective

states and territories under whose jurisdiction the prisoners were originally

sentenced.”).

Finally, Mr. Crosby contends the district court erred in denying relief

without holding an evidentiary hearing. Because the issues raised are purely legal

ones that can be resolved on the basis of Mr. Crosby’s petition, the district court

was not required to have an evidentiary hearing. See United States v. Tubwell, 37

F.3d 175, 179 (5th Cir. 1994); 28 U.S.C. § 2243.

1 On appeal, Mr. Crosby appears to recognize that a procedural due process claim requires a constitutionally cognizable liberty interest and characterizes his claim as one based on substantive due process in an attempt to overcome this deficiency. The allegations in support of his claim, however, reveal that it is the allegedly improper transfer procedures for which he seeks a remedy. Moreover, any due process claim, either substantive or procedural, is by the very language of the Fourteenth Amendment and the authority cited by Mr. Crosby dependent upon the existence of an underlying constitutionally recognized interest that is simply not present under the circumstances here.

-3- We DENY Mr. Crosby’s request for a certificate of appealabilty and

DISMISS this appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

-4-