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Smith v. Lindsay

January 30, 2008

FREEMAN W. SMITH, PETITIONER
v.
CAMERON LINDSAY, RESPONDENT.



The opinion of the court was delivered by: William W. Caldwell United States District Judge

(Judge Caldwell)

MEMORANDUM

I. Introduction

Freeman W. Smith, an inmate at FCI-Cumberland, Cumberland, Maryland, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 while he was housed at USP-Canaan, in Waymart, Pennsylvania. Smith is serving a sixty- month sentence imposed by the United States District Court for the Northern District of New York for manufacturing, distributing, and possessing with intent to distribute, methamphetamine.

As clarified by his traverse, the 2241 petition makes two claims. First, the sentencing court erred in not giving Petitioner credit on his federal sentence for the period of time between the date he alleges he became eligible for parole on the state sentence he was then serving and the date his federal sentence was imposed. Second, the anti-shuttling provision of the Interstate Agreement on Detainers Act (IADA) was violated when Petitioner was taken before a federal court for an initial appearance and then returned to state custody without completion of the federal proceedings.

The respondent warden has filed a response to the petition, seeking its dismissal based on Smith's failure to exhaust his administrative remedies within the Bureau of Prisons (BOP). This response was understandable, since Petitioner had not made clear in his petition who had failed to give him the proper credit, the BOP or the sentencing court. He had also failed to mention the IADA in his petition.

However, given the real nature of his claims, which do not touch on the BOP's calculation of how long Petitioner must remain confined on his federal sentence, Petitioner's failure to exhaust administrative remedies is not relevant to his petition. Nonetheless, we will dismiss it because Petitioner cannot invoke section 2241 if a motion under 28 U.S.C. § 2255 was available to litigate the issues presented in the 2241 petition. Section 2255 was available to Petitioner. Hence, we will dismiss this petition.

II. Background

On February 25, 2003, Smith was arrested for a New York State parole violation. (Doc. 14-2, Ex. 2, Kitka Decl. at ¶ 5). He was sentenced on April 14, 2003, to a term of two- to six-years imprisonment. (Id.; see also Doc. 15, Traverse). On April 14, 2003, while serving his state sentence, Smith made an initial appearance on his federal charges. (Doc. 15, Traverse). Petitioner was subsequently "returned to state custody that exact same day" and resumed serving his state sentence. (Id.) (emphasis in the original).

On February 25, 2004, pursuant to a writ of habeas corpus ad prosequendum, Smith was transferred to federal authorities. (Doc. 14-2, Ex. 2, Kitka Decl. at ¶ 5). Smith remained in federal custody through March 11, 2005, when, after a plea of guilty, he was sentenced in federal court to a term of sixty-months imprisonment. (Id.)

Smith was returned to New York State custody on March 11, 2005. (Id. at ¶ 6). New York gave him sentence credit from the date of his arrest (February 25, 2003) through the date he was released on parole (July 12, 2005). (Id. at ¶¶ 7-8). This award of sentence credit by New York includes the period of time Smith spent in federal custody pursuant to the writ ad prosequendum. (Id. at ¶ 8). Smith's federal sentence started running on July 12, 2005, the date Smith was paroled by New York authorities. (Id. at ¶ 9). Smith alleges he was eligible for parole on April 28, 2005, the date from which he contends the federal court should have given him credit on his federal sentence.

After consultation with New York authorities, the BOP granted Smith custody credit for the following dates: December 3, 2002, through December 6, 2002. (Id. at ¶ 10). As Smith's federal sentence was silent with respect to his previously imposed state sentence, Smith's federal sentence was computed as a consecutive sentence under 18 U.S.C. § 3584(a). Smith's projected release date is June 9, 2009. (Doc. 14-2, Ex. 1, Wallace Decl., Attach. A).

Smith took no direct appeal but did file a motion under 28 U.S.C. ยง 2255 with the sentencing court, which was denied. See Smith v. United States, No. 06-CV-243, No. ...


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