NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

TERRENCE MOODY, :

: Civil No. 10-6745 (JBS)

Petitioner, :

: OPINION

v. :

:

WARDEN DONNA ZICKEFOOSE, :

:

Respondent. :

:

APPEARANCES:

TERRENCE MOODY, Petitioner Pro Se

#41332-037 

F.C.I. Fort Dix 

P.O. Box 2000 

Fort Dix, N.J. 08640 

SIMANDLE, District Judge:

Terrence Moody (“Petitioner”), an inmate incarcerated at FCI

Fort Dix in New Jersey, filed a Petition for a Writ of Habeas

Corpus, pursuant to 28 U.S.C. § 2241, challenging the duration of

his confinement on a federal sentence. Petitioner challenges the

failure of the Bureau of Prisons (“BOP”) to grant him prior custody

credit under 18 U.S.C. § 3585(b) for time spent at the Volunteers

of America as a condition of his bond, prior to the commencement of

his sentence. 

I. BACKGROUND

On March 7, 2006, Petitioner was arrested by federal

authorities in Baltimore, Maryland for Conspiracy to Distribute and

Possession with Intent to Distribute Cocaine, Cocaine Base and

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Heroin in case number WDQ-06-CR-074. (Resp.’s Answer, Roush

Declaration, at ¶ 3 and Attachment 1.) On that same date,

Petitioner was released from federal custody on bond. (Id.) On

June 19, 2006, Petitioner was ordered into temporary detention

pending a hearing. (Id. at ¶ 4 and Attachment 1.) Thereafter, on

June 23, 2006, Petitioner was released on bond to Pretrial

Supervision and placed in the Volunteers of America. (Id. at ¶ 4

and Attachments 1 and 3.) On November 11, 2006, Petitioner was

sentenced in the United States District Court for the District of

Maryland in case number WDQ-06-CR-074 to a term of 262 months

imprisonment. (Id. at ¶ 5 and Attachment 4.) Thereafter, on

December 5, 2008, Petitioner’s sentence was reduced from a 262

month term of imprisonment to a 210 month term of imprisonment. 

(Id. at ¶ 6 and Attachment 5.)

The BOP determined that Petitioner’s sentence commenced on

November 3, 2006, the date he was sentenced, with prior custody

credits for March 7, 2006 (the date he was arrested and released on

bond) and for the period June 19, 2006 through June 23, 2006 (the

time period from the date Petitioner was ordered into temporary

detention until the date he was released via bond to pretrial

supervision at the Volunteers of America). (Id. at ¶ 7 and

Attachment 6.) 

On April 16, 2010, Petitioner filed a BP-8 Remedy form with

the institution, seeking credit for the time spent with the

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Volunteers of America. (Pet., Ex. 1.) In response, the

Correctional Counselor stated that 

review of your judgement and commitment file revealed

that on June 23, 2006, your conditions of bond were

modified to include that you be placed on home

confinement with electronic monitoring. On November 3,

2006, you were sentenced and detained by the U.S.

Marshals to serve your current federal sentence. Your

federal sentence began on November 3, 2006, the date you

were sentenced. Since all the time was a condition of

your bond, we are precluded from awarding this time as

jail credit.

(Id.) 

On May 13, 2010, Petitioner filed an appeal of the counselor’s

answer, stating that it must have been a mistake because the

electronic monitoring was for a different 2004 case which was

ultimately dismissed. (Id.) He states that he is currently

seeking credit for the time he spent with the Volunteers of

America, after he was released on June 23, 2006. (Id.) On June

3, 2010, the Warden answered Petitioner’s complaint, stating

Pursuant to Program Statement 5880.28, Sentence

Computation Manual(CCCA of 1984) and 18 U.S.C. 3585(b),

“official detention” is defined, for purposes of this

policy, as time spent under a federal detention order. 

Time spent under restrictive conditions of release...is

not official detention entitling an inmate to prior

custody time credit under 18 U.S.C. 3585(b). Time spent

in a residence in a CCC or a similar facility as a result

of Pretrial Service Act of 1982 (18 U.S.C. 3152-3154), or

as a result of a condition of bond or release on own

recognizance (18 U.S.C. 3141-3143), or as a condition of

parole, probation or supervised release, is not

creditable to the service of a subsequent sentence...

(Resp.’s Ans. at Ex. 2.) 

On June 18, 2010, Petitioner filed a Regional Appeal of the

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Warden’s decision. (Pet. at 14.) That appeal was denied as

untimely. (Answer at Ex. 3.) On July 11, 2010, Petitioner filed

an appeal to the Central Office. (Pet. at 13.) On August 10,

2010, the Central Office denied Petitioner’s appeal for the same

reasons as the Regional Office. (Id. at 15.) 

On December 23, 2010, Petitioner filed the instant Petition

for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. (Docket

Entry No. 1.) On January 12, 2011, the Court entered an order

requiring Petitioner to submit the filing fee or a complete in

forma pauperis application. (Docket Entry No. 2.) On January 24,

2011, Petitioner filed a complete in forma pauperis application and

on March 18, 2011, the Court granted said application and ordered

an answer. (Docket Entry Nos. 3 & 4.) On April 21, 2011,

Respondent Donna Zickefoose filed an answer. (Docket Entry No. 8.) 

Petitioner did not file a reply. 

II. DISCUSSION

A. Legal Standard

“Habeas corpus petitions must meet heightened pleading

requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). A

petition must “specify all the grounds for relief” and must set

forth “facts supporting each of the grounds thus specified.” See

Rule 2(c) of the Rules Governing § 2254 Cases in the U.S. District

Courts (amended Dec. 1, 2004) (“Habeas Rules”), made applicable to

§ 2241 petitions through Rule 1(b) of the Habeas Rules.

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Nevertheless, a pro se pleading is held to less stringent

standards than more formal pleadings drafted by lawyers. Estelle

v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519,

520 (1972). A pro se habeas petition and any supporting

submissions must be construed liberally and with a measure of

tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);

Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);

United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969).

B. Analysis

1. Jurisdiction

A habeas corpus petition is the proper mechanism for a

prisoner to challenge the “fact or duration” of his confinement,

Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973), including

challenges to prison disciplinary proceedings that affect the

length of confinement, such as deprivation of good time credits,

Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v. Balisok, 520

U.S. 641 (1997); see also Wilkinson v. Dotson, 125 S.Ct. 1242

(2005). Habeas corpus is an appropriate mechanism, also, for a

federal prisoner to challenge the execution of his sentence. See

Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001); Barden v.

Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990). In addition, where

a prisoner seeks a “quantum change” in the level of custody, for

example, where a prisoner claims to be entitled to probation or

bond or parole, habeas is the appropriate form of action. See,

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e.g., Graham v. Broglin, 922 F.2d 379 (7th Cir. 1991) and cases

cited therein.

This Court has subject matter jurisdiction under § 2241 to

consider the claim challenging the BOP's final decision because

Petitioner challenges the BOP's calculation of his release date on

federal grounds and he was incarcerated in New Jersey at the time

he filed the Petition. See Blood v. Bledsoe, 2011 WL 2689050 (3d

Cir. July 12, 2011); Vega v. United States, 493 F.3d 310, 313 (3d

Cir. 2007); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241

(3d Cir. 2005).

2. Exhaustion of Administrative Remedies

Respondent asks this Court to dismiss the Petition for failure

to exhaust administrative remedies.

Although 28 U.S.C. § 2241 contains no statutory exhaustion

requirement, a federal prisoner ordinarily may not bring a petition

for writ of habeas corpus under 28 U.S.C. § 2241, challenging the

execution of his sentence, until he has exhausted all available

administrative remedies. See, e.g., Callwood v. Enos, 230 F.3d

627, 634 (3d Cir. 2000); Arias v. United States Parole Comm'n, 648

F.2d 196, 199 (3d Cir. 1981); Soyka v. Alldredge, 481 F.2d 303, 306

(3d Cir. 1973). Where exhaustion is required, a prisoner's

procedural default in pursuing administrative remedies bars

judicial review of a subsequent habeas corpus petition, absent the

prisoner's demonstration of cause and prejudice for the default. 

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Moscato, 98 F.3d at 760-62(citing Davis v. United States, 411 U.S.

233 (1973)). 

In general, the BOP Administrative Remedy Program is a

multi-tier process that is available to inmates confined in

institutions operated by the BOP for “review of an issue which

relates to any aspect of their confinement.” 28 C.F.R. § 542.10. An

inmate must initially attempt to informally resolve the issue with

institutional staff. 28 C.F.R. § 542.13(a). If informal resolution

fails or is waived, an inmate may submit a BP-9 Request to “the

institution staff member designated to receive such Requests

(ordinarily a correctional counsel)” within 20 days of the date on

which the basis for the Request occurred, or within any extension

permitted. 28 C.F.R. § 542.14. An inmate who is dissatisfied with

the Warden's response to his BP-9 Request may submit a BP-10 Appeal

to the Regional Director of the BOP within 20 days of the date the

Warden signed the response. 28 C.F.R. § 542.15(a). The inmate may

appeal to the BOP's General Counsel on a BP-11 form within 30 days

of the day the Regional Director signed the response. Id. Appeal

to the General Counsel is the final administrative appeal. Id. 

In this case, Respondent argues that there is no indication in

the administrative record that the Regional Director or the BOP

Central Office reached a decision on the merits regarding

Petitioner’s sentence computation claims. Specifically, the

Regional Director denied the appeal as untimely because they did

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not receive the appeal until June 25, 2010 and the Warden response

was dated June 3, 2010. The Central Office affirmed the finding of

untimeliness. Accordingly, Respondent argues that Petitioner has

not properly exhausted his administrative remedies, and the

Petition should be dismissed. 

In his Petition, Petition argues that his appeal was not

untimely because he received the response from the Warden on June

3, 2010 and he submitted his appeal to the Regional Office on June

18, 2010. He argues that the prison mailbox rule should apply and

his appeal be deemed filed on June 18 . 

th

In this case, even if the Court were to find that Petitioner

is correct and the prison mailbox rule applies, thereby making his

appeal timely, the petition must still be denied because it is

clear that he is not entitled to credit. 

3. Prior Custody Credit

18 U.S.C. § 3585 provides, in relevant part:

(a) Commencement of sentence.--A sentence to a term of

imprisonment commences on the date the defendant is

received in custody awaiting transportation to, or

arrives voluntarily to commence service of sentence at,

the official detention facility at which the sentence is

to be served.

(b) Credit for prior custody.--A defendant shall be given

credit toward the service of a term of imprisonment for

any time he has spent in official detention prior to the

date the sentence commences–

(1) as a result of the offense for which the

sentence was imposed; or 

(2) as a result of any other charge for which the

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defendant was arrested after the commission of the

offense for which the sentence was imposed; 

that has not been credited against another sentence.

The claim for prior custody credit is governed by Reno v.

Koray, 515 U.S. 50 (1995). In that case, prior to the commencement

of Koray’s federal sentence, a United States Magistrate Judge

released him on bail pursuant to the Bail Reform Act, see 18 U.S.C.

§ 3142(c). “The order required that he be ‘confined to [the]

premises’ of a Volunteers of America community treatment center

without ‘authoriz[ation] to leave for any reason unless

accompanied’ by a Government special agent.” Koray, 515 U.S. at

53. Koray filed a habeas petition challenging the BOP’s

denial of his request for credit toward his federal sentence of the

150 days he spent confined to the treatment center. 

The Supreme Court held that a federal prisoner is not

“entitled to credit against his sentence under § 3585(b) for time

when he was ‘released’ on bail pursuant to the Bail Reform Act of

1984.” Id. at 54. The Court reasoned that, “under the language of

the Bail Reform Act of 1984, a defendant suffers ‘detention’ only

when committed to the custody of the Attorney General; a defendant

admitted to bail on restrictive conditions . . . is ‘released.’” 

Id. at 57.

This Court holds that, under Koray, the time Petitioner spent

with Volunteers of America pursuant to the Bail Reform Act was not

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time spent in “official detention” within the meaning of § 3585(b). 

It follows that the BOP did not abuse its discretion in refusing to

credit this time against Petitioner’s federal sentence. See United

States v. Garcia, 362 Fed. App’x 293, 296 n.3 (3d Cir. 2010)

(noting that a federal prisoner is not entitled to prior custody

credit pursuant to § 3585(b) for the time he spent on home

confinement while released under the Bail Reform Act). 

III. CONCLUSION

For the above-stated reasons, the Petition will be denied with

prejudice. An appropriate order follows. 

Dated: October 31, 2011

 s/ Jerome B. Simandle 

JEROME B. SIMANDLE

UNITED STATES DISTRICT JUDGE

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