Gerry Smart v. Warden, FCIB

2014 DNH 015

• Court: District Court, D. New Hampshire
• Decided: January 16, 2014
• Docket: 13-CV-375-SM
• Status: Published

Opinion

Gerry Smart v. Warden, FCIB 13-CV-375-SM 01/16/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gerry Smart, Petitioner

v. Case No. 13-cv-375-SM Opinion No. 2014 DNH 015

Warden, Federal Correctional Institution, Berlin, New Hampshire,1 Respondent

O R D E R

Gerry Smart, an inmate at the Federal Correctional

Institution in Berlin, New Hampshire ("FCIB"), has filed a

petition, pursuant to 28 U.S.C. § 2241. The matter is before the

court pursuant to Rule 4 of the Rules Governing Section 2254

Cases in the United States District Courts ("§ 2254 Rules"). See

§ 2254 Rule 1 (b) (allowing application of the § 2254 Rules to any

habeas petition).

Claims

In his § 2241 petition. Smart asserts that the federal

Bureau of Prisons, in executing a federal sentencing order, has

deprived him of liberty without due process: (1) by relinguishing

primary authority over Smart on June 28, 2010, after the United

States had assumed such jurisdiction in March 2010, thereby

1 Petitioner's present custodian is Esker Tatum, warden of the Federal Correctional Institution in Berlin, New Hampshire. Warden Tatum is the appropriate respondent in this action. waiving the right to incarcerate Smart after June 28, 2010; and

(2) by failing to compute his federal sentence in a manner that

credits the time he served in the Mississippi Department of

Corrections against his federal sentence.

Discussion

Upon review of the pleadings filed by Smart, the court finds

that one or more of the claims sufficiently alleges that Smart is

"in custody in violation of the Constitution . . . of the United

States," 28 U.S.C. § 2241(c)(3), to allow this matter to proceed.

Che court further finds that Smart appears to have exhausted the

claims raised in this petition. The petition (doc. no. 1J shall

therefore be served; the clerk's office is directed to serve the

petition on Esker Tatum, the FCIB warden.

Respondent shall file an answer or other pleading in

response to the allegations made in the habeas petition. The

answer shall comply with the requirements of § 2254 Rule 5.

SO ORDERED.

Smeven J/ McAuliffe United States District Judge

January 16, 2014

cc: Gerry Smart, pro se Seth R. Aframe, Esq.