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                                        FILED
                           United States Court of Appeals
                                    Tenth Circuit
  
                                     DEC 20 2001
  
                                   PATRICK FISHER
                                        Clerk                           
																
				UNITED STATES COURT OF APPEALS
         
                                   TENTH CIRCUIT
         
         
         
                                                     No. 01-1441
         ELMER MORALES,                        (District of Colorado)
                                                (D.C. No. 01-Z-1491)
              Petitioner-Appellant,            
                                          
         v.                               
                                          
         IMMIGRATION AND  NATURALIZATION  
         SERVICE,                         
                                          
              Respondent-Appellee.             
                                         
         
         ORDER AND JUDGMENT(1)
                  
         
         Before HENRY, BRISCOE, 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.

              Elmer Morales appeals the district court's dismissal without prejudice of 

         his 28 U.S.C. . 2241 habeas petition.  He also seeks permission to proceed on
         


         (1)     This order and judgment is not binding precedent, except under the 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.
         --------------------------------------------------------------------------------
         appeal in forma pauperis.  We grant his request to proceed in forma pauperis 

         and affirm the district court.(1)

              In his . 2241 petition, Morales sought to challenge the INS' decision to 

         file a detainer with the state prison officials holding him.  Citing to this court's 

         decision in Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994), the 

         district court concluded that it lacked jurisdiction over Morales' petition 

         because the filing of an INS detainer does not place the petitioner "in custody" 

         for purposes of . 2241.

              A detainer usually serves only as a notice to [] prison authorities 
              that the INS is going to be making a decision about the 
              deportability of the alien in the future.  The reasoning follows that 
              the detainer does not serve to establish conclusively either present 
              or future restraints on liberty.  Because there is no actual claim to 
              the alien following the completion of his sentence, there is no 
              custody.

         Id. at 493.  Galviz-Medina made clear, however, that if the detainer were 

         coupled with an order of deportation, the "in custody" requirement of . 2241 

         would be met.  Morales concedes in his appellate brief that the INS has not 

         issued an order of deportation.  Thus, under Galviz-Medina, the INS detainer 

         does not place him in custody for purposes of . 2241.  Accordingly, the
         


         (1)     Although Morales is a state prisoner, he does not need a certificate of 
         appealability to appeal the district court's dismissal of his  2241 petition. 
         See Montez v. McKinna, 208 F.3d 862, 867 n.6 (10th Cir. 2000) ("[A] state 
         prisoner seeking to challenge a detainer filed by a federal agency does not need 
         a COA to proceed on appeal.").
         --------------------------------------------------------------------------------
         district court correctly concluded that it lacked jurisdiction over Morales' . 

         2241 petition.

              The judgment of the United States District Court for the District of 

         Colorado is hereby AFFIRMED.

                                       ENTERED FOR THE COURT    

         

                                       Michael R. Murphy
                                       Circuit Judge



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