UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gregory Alan Gaylor

v. Civil No. 05-cv-339-PB

George W. Bush, et al.

O R D E R

Gregory Gaylor has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 alleging that he is

entitled to release from the custody of the New Hampshire

Department of Corrections (“NHDOC”) (document no. 1). Gaylor

alleges that his current detention violates the extradition

treaty in force between Switzerland and the United States. On

October 11, 2005, I recommended that the petition be dismissed

because Gaylor had failed to demonstrate exhaustion of his claims

(document no. 2). Gaylor has now filed “Petitioner’s Memorandum

of Law in Support of the Petition,” (document no. 3) which I will

accept as a request for reconsideration of the October 11 Report

and Recommendation. Gaylor alleges that exhaustion of his claims

in the state courts would be futile because the New Hampshire

Supreme Court (“NHSC”) has already ruled that Gaylor does not

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1This Court is aware that a previous petition for a writ of

habeas corpus filed in this court was recently dismissed. See

Gaylor v. New Hampshire State Prison, Warden, Civ. No. 04-372-PB

Order of Jan. 24, 2006. I have determined that the prohibition

against successive habeas petitions does not now apply because

the instant petition was filed before the legality of his

detention had been determined. See 28 U.S.C. § 2244(a) (“No

circuit or district judge shall be required to entertain an

application for a writ of habeas corpus to inquire into the

detention of a person pursuant to a judgment of a court of the

United States if it appears that the legality of such detention

has been determined by a judge or court of the United States on a

prior application for a writ of habeas corpus.” 

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have standing to challenge a violation of the extradition treaty. 

As discussed herein, I find that Gaylor has demonstrated that

further exhaustion in the state courts would be futile given the

NHSC’s prior ruling in his case. Accordingly, I direct that

Gaylor’s petition proceed at this time.1

Background

1. Extradition Treaty Violation

On June 29, 1999, Gaylor was sentenced on three counts of

theft and one count of evasion of the New Hampshire business

profits tax. Prior to serving his New Hampshire sentences,

Gaylor fled to Switzerland, where he was arrested pursuant to a

warrant in December of 1999. The United States requested that

the Swiss government extradite Gaylor to serve those sentences. 

On May 1, 2000, the Swiss government granted the extradition

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request as to the three theft sentences, but expressly refused to

grant extradition on the tax evasion charge. On July 21, 2000,

Switzerland’s Federal Supreme Court confirmed this decision in a

final and enforceable order. 

Gaylor has been incarcerated by the NHDOC since August 10,

2000, which is the date when he was extradited. According to the

NHDOC’s offender records, which were included with Gaylor’s

original petition, the time Gaylor served from August 10, 2000

until July 6, 2005 was credited towards Gaylor’s sentence on the

tax evasion chareg. On July 6, 2005, Gaylor’s Swiss counsel

notified the United States Department of Justice that Gaylor was

serving a sentence not authorized by the extradition order. 

On June 29, 2005, Gaylor notified Attorney John Vinson,

counsel for the NHDOC, that he had been required to serve a

sentence specifically excluded by the terms of Switzerland’s

grant of extradition. Gaylor requested that Vinson resolve the

matter immediately. On July 1, 2005, Vinson responded to Gaylor

as follows:

I am not your attorney. If you think that you are 

precluded from being sentenced for criminally disposing 

of over $600,000 of property in NH & convicted by a NH 

jury, you should consult with private counsel and see if 

you can convince a U.S. court to release you. I do not 

anticipate that you will be successful.

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On August 29, 2005, the United States Department of Justice

(“DOJ”) contacted the office of the New Hampshire Attorney

General requesting confirmation that Gaylor had not been

“detained” in connection with the tax evasion case, as such a

detention would violate the extradition treaty. On August 30,

2005, Assistant New Hampshire Attorney General Karen Huntress, on

behalf of the NHDOC, represented to Gaylor’s Swiss counsel that

all of the time that Gaylor had served in New Hampshire was being

credited toward his theft sentences and not his tax evasion

sentence. On September 5, 2005, Cynthia Crompton of the NHDOC

confirmed for Gaylor in writing that Attorney Huntress had

contacted Crompton and requested “deletion” of the tax evasion

sentence, confirming that the credit Gaylor received was then

reapplied to one of the theft sentences. Although Gaylor

understood that the tax evasion sentence was to have been

“cancelled,” on October 12, 2005, Crompton wrote to Attorney

Huntress and advised her that “[o]n advice from Department of

Corrections legal counsel, John Vinson, I have re-entered

Merrimack Superior Court docket 98S486 [the tax evasion sentence]

as a consecutive sentence.” 

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2. Futility of Exhaustion

In the spring of 2002, Gaylor filed a petition for a writ of

habeas corpus in the state sentencing court. Among the fourteen

claims in that petition, one claim alleged a violation of the

same extradition treaty which Gaylor now claims was violated by

the New Hampshire authorities. The sentencing court’s order of

August 2, 2002 denies habeas relief for that claim on the grounds

that “the petitioner lacks standing to assert a violation of

Switzerland’s rights under the treaty.” Gaylor then appealed the

denial of his state habeas petition to the NHSC which declined

the appeal on December 23, 2003 on the basis that “the trial

court has issued an opinion identifying and discussing the issues

presented, and the court does not disagree with the opinion.” 

Although the precise treaty-related question before the NHSC in

2003 differs from the question presented now, Gaylor now alleges

that the NHSC’s decision in the 2003 case makes clear that any

appeal to that Court based on the treaty would be unsuccessful as

that Court has ruled that Gaylor does not have standing to

challenge his sentence under the treaty. 

Gaylor’s objection argues that Gaylor, as the aggrieved

prisoner, does in fact have standing to challenge a violation of

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the extradition treaty. In United States v. Rauscher, the

Supreme Court held that:

[U]nder the doctrine that the treaty is the supreme law

of the land, and is to be observed by all the courts, 

state and national, ‘anything in the laws of the states 

to the contrary notwithstanding,’ if the state court 

should fail to give due effect to the rights of the 

party under the treaty, a remedy is found in the 

judicial branch of the federal government, which has 

been fully recognized. This remedy is by a writ of error 

from the supreme court of the United States to the state 

court which may have committed such an error. The case 

being thus removed into that court, the just effect and 

operation of the treaty upon the rights asserted by the 

prisoner would be there decided. If the party, however, 

is under arrest, and desires a more speedy remedy in 

order to secure his release, a writ of habeas corpus 

from one of the federal judges or federal courts, issued 

on the ground that he is restrained of his liberty in 

violation of the constitution or a law or a treaty of 

the United States, will bring him before a federal 

tribunal, where the truth of that allegation can be 

inquired into, and, if well founded, he will be 

discharged. 

United States v. Rauscher, 119 U.S. 407, 430-431 (1886); see also

United States v. Alvarez-Machain, 504 U.S. 655, 681 (1992)

(Stevens, J., dissenting) (opining that Rauscher was correctly

decided); see United States v. Saccoccia, 58 F.3d 754, 766 (1st

Cir. 1995) (declining to reach the issue of standing of an

extradited person to challenge a treaty violation because the

issue was more easily dismissed on the merits but noting that

“the side that favors individual standing has much to commend

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2I leave the decision as to whether or not the state courts

correctly decided the standing issue to the District Judge to

decide on the merits.

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it.”); but see United States v. Nosov, 153 F.Supp.2d 477, 480 &

n.2 (S.D.N.Y 2001) (acknowledging the holding in Rauscher and

discussing split in federal circuit court authority regarding

whether or not an extradited person has standing to raise the

specialty doctrine for an alleged violation of right granted nder

an international extradition treaty).2

Discussion

A petition or claim is excepted from the requirement of

exhaustion “only if there is no opportunity to obtain redress in

state court of if the corrective process is so clearly deficient

as to render futile any effort to obtain relief.” Duckworth v.

Serrano, 454 U.S. 1, 3 (1981); Gagne v. Fair, 835 F.2d 6, 9 (1st

Cir. 1987). Petitioner claims that the NHSC’s prior ruling

regarding standing precludes his ability to obtain relief for

this claim in that Court. Because the NHSC has already decided

that Gaylor can bring no valid claim under the extradition

treaty, I find that Gaylor has sufficiently alleged the futility

of proceeding with exhaustion of his current claims in the state

court. Accordingly, I will excuse Gaylor from the exhaustion

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requirement and allow his petition to proceed in this Court at

this time.

Conclusion

I direct that the petition be served on the Respondent

President of the United States and the Attorney General of the

United States as the parties responsible for the petitioner’s

detention pursuant to an international treaty and the

Commissioner of the NHDOC as the party having actual physical

custody of petitioner. See 28 U.S.C. § 2243. The clerk’s office

is directed to forward to the United States Marshal for the

District of New Hampshire (the “U.S. Marshal’s office”) this

order, the Report and Recommendation (document no. 2), a copy of

the habeas petition (document no. 1) and a copy of the objection

to the Report and Recommendation (document no. 3). Upon receipt

of the necessary documentation, the U.S. Marshal’s Office shall

effect service upon respondents the President of the United

States and the Attorney General of the United States by

delivering a copy of the documents to the United States Attorney

for the District of New Hampshire and by mailing a copy of the

documents by registered or certified mail to the office of the

Attorney General of the United States and the DOJ. See Fed. R.

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3Ordinarily, service on the NHDOC Commissioner would be made

by delivering the documents to the office of the New Hampshire

Attorney General. In this case, however, one or more attorneys

in the New Hampshire Attorney General’s office may be witnesses

in this case and therefore, both the NHDOC Commissioner and the

office of the Attorney General may have to seek the services of

outside counsel in this matter.

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Civ. P. 4(i)(2)(A). The clerk’s office is further directed to

deliver a copy of the above-referenced documents to the U.S.

Marshall’s for service on Stephen Curry, the NHDOC Commissioner,

by delivering the documents to Commissioner Curry.3 The Clerk’s

office should also send a courtesy copy of the documents to the

New Hampshire Attorney General’s Office. 

The respondents shall file answers or other pleadings no

later than twenty days from the date of service of this Order. 

See 28 U.S.C. § 2243. Upon receipt of the response, the court

will determine whether a hearing is warranted.

Petitioner is referred to Fed. R. Civ. P. 5, which requires

that every pleading, written motion, notice, and similar paper,

after the original petition or complaint, shall be served on all 

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parties. Such service is to be made by mailing the material to

the parties’ attorneys.

SO ORDERED.

__________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 30, 2006

cc: Gregory Gaylor, pro se

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