OpenJurist

36 F3d 1101 Schmitt v. E J Brennan Usp

36 F.3d 1101

Wilhelm E. SCHMITT, Appellant,
v.
E. J. BRENNAN, Warden, U.S.P., Lewisburg, Appellee.

No. 94-1558.

United States Court of Appeals,
Eighth Circuit.

Submitted: September 14, 1994.
Filed: September 23, 1994.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.

Before WOLLMAN, BEAM, and HANSEN, Circuit Judges.

PER CURIAM.

1

Wilhelm E. Schmitt, a federal inmate, was sentenced in the District of Minnesota in 1985 to an aggregate term of twenty-six years-the total of his consecutive sentences for several counts. Schmitt filed this petition for writ of habeas corpus in the District of Minnesota in February 1993, while he was confined in the federal prison facility at Lewisburg, Pennsylvania. He asserted that his Judgment and Commitment Order required the five- year sentence for Count 3 to be served consecutively to all his other sentences, that prison computation data showed the sentence for Count 3 expired in February 1989, and that he was thus being held unlawfully. Schmitt argued that the Bureau of Prisons was not at liberty to have him serve his last sentence first, but must credit his time served in the same order in which the court had sentenced him. The district court denied Schmitt's motion on the merits.

2

Schmitt's claim that he has completed his last sentence and is thus entitled to release from prison is a challenge to the execution of his sentence under 28 U.S.C. Sec. 2241. Schmitt did not, however, file the action in the district in which he was then confined. Therefore, the district court lacked jurisdiction to entertain the petition, and we must dismiss the appeal. See United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987).

3

Accordingly, we dismiss the appeal and remand the case to the district court to dismiss for lack of jurisdiction.