Edmund M. Abordo v. Timothy O'Dell ( 2001 )

  •                      United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                        No. 01-2296
    Edmund M. Abordo,                        *
                 Appellant,                  *
                                             * Appeal from the United States
          v.                                 * District Court for the
                                             * District of Minnesota.
    Timothy O’Dell, Warden,                  *
                                             *        [UNPUBLISHED]
                 Appellee.                   *
                              Submitted: November 7, 2001
                                   Filed: December 4, 2001
    Before McMILLIAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
          Edmund M. Abordo--a Hawaii state inmate who had been transferred to Prairie
    Correctional Facility (PCF), a private prison in Minnesota--appeals the district
    court’s1 dismissal with prejudice of his habeas petition, filed under 28 U.S.C. § 2241.
    The petition, naming PCF’s warden, alleged that Mr. Abordo’s confinement at PCF
    was illegal because (1) he had not been committed to incarceration in Minnesota
           The Honorable Donovan W. Frank, United States District Judge for the
    District of Minnesota, adopting the report and recommendations of the Honorable
    Franklin L. Noel, United States Magistrate Judge for the District of Minnesota.
    under Minnesota law, (2) private prisons are not entitled to enforce the laws of other
    states, (3) Hawaii’s jurisdiction over him ended once he arrived in Minnesota, and
    (4) the Full Faith and Credit Clause, U.S. Const. art. 4, § 1, prohibited Minnesota
    from enforcing Hawaii’s penal judgments. We affirm.
          Although Mr. Abordo labeled his suit as one brought under section 2241, the
    only vehicle for his attack on his confinement is 28 U.S.C. § 2254, because he is in
    custody pursuant to a state court judgment. See Crouch v. Norris, 
    251 F.3d 720
    722-23 (8th Cir. 2001) (state prisoners “can only obtain habeas relief through § 2254,
    no matter how [their] pleadings are styled”). Accordingly, to proceed with this
    appeal, Mr. Abordo requires a certificate of appealability, which we grant. See
    28 U.S.C. § 2253.
           We conclude Mr. Abordo failed to prove that he exhausted all available state
    remedies in Minnesota, as required under section 2254, see 28 U.S.C.
    § 2254(b)(1)(A), (B)(i) (court shall not grant writ of habeas corpus unless applicant
    has exhausted remedies available in state court system or there is absence of available
    state corrective process), and in any event, having reviewed the record de novo, see
    United States v. Lurie, 
    207 F.3d 1075
    , 1076 (8th Cir. 2000), we agree with the district
    court that Mr. Abordo’s petition lacked merit.
           First, “[j]ust as an inmate has no justifiable expectation that he will be
    incarcerated in any particular prison within a State, he has no justifiable expectation
    that he will be incarcerated in any particular State.” Olim v. Wakinekona, 
    461 U.S. 238
    , 245 (1983). Second, courts have upheld transfers of inmates to private out-of-
    state facilities. See, e.g., Montez v. McKinna, 
    208 F.3d 862
    , 865-66 (10th Cir. 2000)
    (rejecting challenge to transfer as “unsupported by law”). Third, Hawaii’s
    jurisdiction did not end when it transferred Mr. Abordo to Minnesota, as Hawaii did
    not deliberately and voluntarily relinquish its authority over him. See Evans v. Holm,
    114 F. Supp. 2d 706
    , 711 (W.D. Tenn. 2000) (“It is a popular myth among prisoners
    that a state’s authority over a prisoner ends at the state’s geographical border.”);
    cf. Blango v. Thornburgh, 
    942 F.2d 1487
    , 1491 (10th Cir. 1991) (District of
    Columbia did not waive jurisdiction over habeas petitioner by transferring him to
    federal prison in Kansas). Finally, Mr. Abordo’s reliance on the Full Faith and Credit
    Clause is misplaced, see Michigan v. Doran, 
    439 U.S. 282
    , 287-89 (1978) (in criminal
    matters, concept of full faith and credit is articulated through Extradition Clause,
    U.S. Const. art. IV, § 2, cl. 2), and in any event, Minnesota was not enforcing
    Hawaii’s penal judgment.
           We reject Mr. Abordo’s argument that dismissal should have been without
    prejudice. We do not, however, address his challenge to the pro-hac-vice admission
    of Hawaii’s counsel, because it is not properly before us. See United States v. Davis,
    52 F.3d 781
    , 783 (8th Cir. 1995) (issues not argued in opening brief cannot be argued
    in reply brief).
          Accordingly, we affirm.
          A true copy.
                         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.