NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 3110

___________ SAMUEL ACEVEDO MUNIZ , Appellant

v. DONNA ZICKEFOOSE

____________________________________ On Appeal from the United St ates District Court for the District of New Jersey (D.C. Civil No. 1

- 10

- cv - 02444 ) District Judge: Honorable Robert B. Kugler

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) February 1, 201 2 Before: AMBRO, FISHER and NYGAARD , Circuit Judges (Opinion filed : February 3, 2012)

_________ OPINION

_________ PER CURIAM Samuel Muniz, a federal prisoner incarcerated at FCI Fort Dix, appeals an order denying his 28 U.S.C. § 2241 habeas corpus petition. We will affirm. Muniz filed his petition in May 2010, accusing the Bureau of Prisons (BOP) of2 erring in its calculation of his term of incarceration

. However , upon reviewing the sentence prior to filing its reply, the BOP determined tha t Muniz was entitled to the requested adjustment . It therefore revised Muniz’s term of incarceration to provide credit for the time he had spent in state custody from June 9, 1999, through July 10, 20 0 1, pursuant to U.S.S.G. § 5G1.3. As Muniz “ ha [d] rece ived the relief he seeks and the Petition no longer present [ed] a live case or controversy ,” the Government asked for the District Court to dismiss the petition as moot, and the District Court obliged. Shortly thereafter , Muniz submitted a document entit led “Petitioner’s Informative Motion and Request for Determination,” in which , inter alia, he further challenged his revised term of incarceration because “ the BOP failed to credit good conduct time from June 9, 1999 .” Determining that this ground should have been raised in a new petition, the District Court simultaneously opened a new docket 1 and denied the new petition without prejudice as unexhausted. See Muniz v. Zickefoose , No. 10

– 2444 , 2011 WL
3022439 , at *4

– 5 (D.N.J. July 21, 2011). A timely notic e of appeal followed. 2 We have jurisdiction pursuant to 28 U.S.C. §§ 1291 3

1 D.N.J. Civ. No. 1:11

- cv - 04200

.
2 Muniz also moved to reconsider and reopen after he filed his notice of appeal. The District Court’s eventual denial of those motions is not before us, as Muniz failed to “ file a notice of appeal, or an amended notice of appeal

. . . within the time prescribed by ” the Federal Rules of Appellate Procedure. Fed. R. App. P. 4(a)(4)(B)(ii); United States v. McGlory , 202 F.3d 664, 66 8 (3d Cir. 2000 ).

3 Muniz elected to stand on his petition, rendering the dismissal without prejudice appealable. Lucas v. Twp. of Bethel , 319 F.3d 595, 600 (3d Cir. 2003)

. and 2253. Our review of the District Court’ s legal conclusions is plenary. See Rios v. Wiley , 201 F.3d 257, 262 (3d3 Cir. 2000). “A challenge to the BOP’ s execution of a sentence is properly brought under 28 U.S.C. § 2241 .” Burkey v. Marberry , 556 F.3d 142, 146 (3d Cir. 2009)

. First, we agree with the District Court that Muniz’s post

- dismissal filing was properly construed as a new petition. The claims raised were altogether ne w

— indeed, they arose from Muniz’s success in achieving relief under his first petition

. The District
Court appropriately determined that “ what [Muniz] filed as the Motion in this action should have been filed

— after due administrative exhaustion

— as a new a nd separate § 2241 petition. ” Muniz , 2011 WL 3022439 , at *4. Federal prisoners are ordinarily required to exhaust available administrative remedies before seeking relief under § 2241. Moscato v. Fed. Bureau of Prisons , 98 F.3d 757, 760 (3d Cir. 1996) ; see also Rogers v. United States , 180 F.3d 349, 358 & n.16 (1st Cir. 1999) ; Little v. Hopkins , 638 F.2d 953 , 953

– 54 (6th Cir. 1981) (per curiam)

. In order to exhaust, petitioners must satisfy the procedural requirements of the administrative remedy proces s. 4 Moscato , 98 F.3d at 761

– 62. Muniz argues that he did exhaust by lodging the complaints that gave rise to his initial § 2241 petition, but we do not agree; as the specific sentence

- calculation issue, involving good

- conduct

- time credits, arose only aft er the filing of the first petition , the BOP could not have been on notice of the problem and was therefore unable to apply its expertise to it

. See Moscato , 98 F.3d at
761

– 62 (explaining why exhaustion is required under § 2241). Nor has Muniz shown that exhaustion would be futile and hence excused

. See Gambino v. Morris , 134 F.3d 156, 171 (3d Cir. 1998) ; see also Fazzini v. N.E. Ohio Corr. Ctr. , 473 F.3d 229, 236 (6th4 Cir. 2006) (“[A] habeas petitioner’ s failure to complete the administrative remedy
pro cess may be excused where his failure is due to the administrator, rather than the petitioner

. . . .”). That the Government’s counsel believes the law to require a contrary outcome does not excuse Muniz from pursuing the administrative remedies the BOP

m akes available, and Muniz has not otherwise demonstrated that the “purposes of exhaustion would not be served here.” Woodall v. Fed. Bureau of Prisons , 432 F.3d 235,
23 9 n. 2 (3d Cir. 2005)

. Nor do we detect any error in the District Court’s procedural app roach. The Government properly raised the affirmative defense of exhaustion in opposition to Muniz’s “motion.” Winck v. England , 327 F.3d 1296, 1304 n.6 (11th Cir. 2003). And despite being given “thirty days” from dismissal to show exhaustion and reopen proceedings, see Muniz , 2011 WL 3022439, at *5, Muniz did not timely do so. Cf. Landano v. Rafferty , 897 F.2d 661, 668 (3d Cir. 1990) (“[A] habeas petitioner bears the burden of proving that he has exhausted available . . . remedies.”). In sum, we agree with the District Court’s decision to dismiss the case without prejudice , and we will affirm its judgment

. Shou ld Muniz eventually exhaust the available administrative remedies

— and his submissions to this Court suggest that his efforts to exhaust may stil l be ongoing

— he may f ile a new petition at that time in compliance with all applicable rules.

4 See 28 C.F.R. § § 542.13

– 15 ; Garza v. Davis , 596 F.3d 1198, 1204 (10th Cir. 201 0)

.