UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

EDWARD WATTS, :

:

Petitioner, :

:

v. :

:

USA, :

:

Respondent. :

 :

Civil Action No. 11-0912 (RBK)

 MEMORANDUM OPINION AND ORDER

IT APPEARING THAT:

1. In March 2009, Petitioner, a federal inmate, initiated §

2255 proceedings with the United States District Court for

the Northern District of New York (“NDNY”), i.e., the court

that rendered Petitioner’s federal conviction and sentence

underlying Petitioner’s present incarceration served at the

F.C.I. Fort Dix, New Jersey. See Docket Entry No. 7, at 1.

2. In February 2011, the NDNY issued a decision addressing

Petitioner’s challenges raised in his § 2255 motion. See

id. at 2; see also Docket Entry No. 6 (replicating NDNY

determination). In its decision, the NDNY noted that

Petitioner’s challenges packaged in his § 2255 motion were

of three types: (a) bona fide Section 2255 claims; (b) civil

rights claims challenging alleged denial of medical care;

and (c) those claims, which the NDNY construed as § 2241

challenges. See Docket Entry No. 6. Specifically, with

regard to the latter type, the NDNY observed as follows:

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 1 of 13 PageID: 81
Petitioner asserts [three sub-groups of

challenges, i.e., he maintains] that (1) he has

not received credit for twenty-two months of state

jail time he served after he received his federal

sentence; (2) he has not received credit for 500

hours he spent in a drug program . . .; and (3) he

has taken various vocational and rehabilitative

classes while incarcerated, as well as being

trusted to participate in various food service and

work programs . . . . No matter how the Court

construes these statements, they are clearly

assertions that prison officials have improperly

computed his sentence.

Id. at 10.

3. Therefore, the NDNY transferred the above-noted three subgroups of Petitioner’s challenged, which NDNY construed as §

2241 claims, to this District. See id. at 11-12; see also

Docket Entry No. 7 (reflecting receipt of transfer order as

to thee claims). The transfer order did not provide for

severance of these sub-groups; rather, the entire § 2255

action was transferred to this District, including the

resolved-by-NDNY-§-2255-claims, the dismissed-denial-ofmedical-care claims and the claims construed as § 2241

challenges. See id. The so-transferred matter was assigned

to the undersigned. 

4. This Court agrees with NDNY determination that Petitioner’s

jail-time-credits challenges are best viewed as a § 2241

claim. Analogously, this Court agrees with NDNY

determination that Petitioner’s RDAP challenges are too best

viewed as a § 2241 claim.

Page 2 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 2 of 13 PageID: 82
5. The Court, however, is unclear as to the basis of NDNY

determination that Petitioner’s challenges based on his

vocational and rehabilitative classes, and his participation

in various food service and work programs, provide

jurisdictional basis for a § 2241 claim. The language of §

2241, as well as the common-law history of the writ of

habeas corpus, define the essential purpose of the writ --

to allow a person in custody to attack the legality of that

custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 

However, a federal prisoner may challenge the execution of

his sentence in a petition pursuant to § 2241. See Coady v.

Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). 

6. Conceivably, Petitioner’s vocational and rehabilitative

classes, and his participation in various food service and

work programs, could be relevant to the issue of propriety

of Petitioner’s release to a half-way house, pursuant to the

Second Chance Act, Pub. L. No. 110-199, effective April 9,

2008. However, prison officials typically begin evaluating

inmates for Second Chance Act release not sooner than

eighteen months prior to the date of projected expiration of

the inmates’ respective prison terms. See, e.g., Vargo v.

Grondolsky, 2009 U.S. Dist. LEXIS 87327 (D.N.J. Sept. 23,

2009). Here, Petitioner’s projected release date is April

25, 2012, see <<http://www.bop.gov/iloc2/InmateFinder

Page 3 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 3 of 13 PageID: 83
Servlet?Transaction=NameSearch&needingMoreList=false

&FirstName=edward&Middle=&LastName=watts&Race=U&Sex=

U&Age=&x=0&y=0>>, which indicates that Petitioner could not

have been evaluated for release under the Second Chance Act

until fall 2010 the earliest. Since Petitioner’s § 2255

motion was filed with the NDNY in March 2009, that is, about

a year and a half prior to Petitioner’s earliest date of

evaluation for future release under the Second Chance Act,

it appears facially impossible for Petitioner to challenge,

in his § 2255 motion, any shortcomings of such – at that

point, still future – evaluation. Therefore, the rationale

of NDNY’s decision that Petitioner’s challenges based on his

vocational and rehabilitative classes, and his participation

in various food service and work programs, were § 2241

claims is not immediately obvious to this Court.

7. Moreover, the NDNY transferred to this District three subgroups of Petitioner’s so-qualified § 2241 challenges as a

single action. However, Habeas Rule 2(e) requires filing of

a new and separate petition with regard to each separate

determination being challenged. It is self-evident that, in

the event Petitioner challenged denial of jail-time credits

and denial of RDAP credits, the BOP had to reach two

distinct and separate determinations with regard to each of

these two challenges. Therefore, Petitioner’s § 2241

Page 4 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 4 of 13 PageID: 84
challenges to these two different denials, that is, if such

denial actually took place, should not be bundled up;

rather, they should be brought by means of two distinct and

separate § 2241 actions.

8. In light of the foregoing, this Court will direct the Clerk

to administratively terminate the instant matter without

affecting the merits of Petitioner’s claims. In order to

preserve Petitioner’s opportunity to challenge BOP’s denial

of jail-time credits and/or denial of RDAP credits, this

Court will direct the Clerk to initiate two new and separate

§ 2241 actions, Watts v. BOP (addressing Petitioner’s

challenges as to BOP’s denial of jail-time credits, if such

denial was rendered), and Watts v. Zickefoose (addressing

Petitioner’s challenges as to BOP’s denial of RDAP-based

credits, if such denial was rendered). Since the Court is

unclear as to the basis for Petitioner’s § 2241 challenges

referring to his vocational and rehabilitative classes, and

to his participation in various food service and work

programs, the Court will not direct the Clerk to initiate

one more, i.e., third § 2241 matter for Petitioner. 

However, the Court’s decision not to direct the Clerk to

initiate such third § 2241 action for Petitioner does not

bar Petitioner from initiating such action on Petitioner’s

own. That being said, no statement made in this Memorandum

Page 5 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 5 of 13 PageID: 85
Opinion and Order shall be construed as expressing the

Court’s position that Petitioner’s § 2241 challenges based

on his vocational and rehabilitative classes, and his

participation in various food service and work programs, are

jurisdictionally proper (or improper) and/or that such

challenges are procedurally proper (or improper), and/or

that such challenges are substantively meritorious (or lack

merits).

9. Accordingly, the Court will allow Petitioner an opportunity

to submit amended § 2241 petitions in the newly opened

matters Watts v. BOP and Watts v. Zickefoose, detailing

Petitioner’s challenges, if any, based on denial of jailtime credits or based on denial of RDAP credits. Petitioner

will be directed to submit his filing fee of $5.00 (or his

in forma pauperis application) in each action where he

elects to submit an amended petition.

10. In addition, since Petitioner is being allowed to submit

amended petitions in Watts v. BOP and Watts v. Zickefoose,

the Court finds it warranted to explain to Petitioner the

concept of administrative exhaustion in order to ensure

against the scenario where Petitioner submits a § 2241

amended petition but such petition would be subject to

dismissal as unexhausted. 

Page 6 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 6 of 13 PageID: 86
11. 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); Bradshaw

v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981); 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). 

The exhaustion doctrine promotes a number of goals: it is

“(1) allowing the appropriate agency to develop a factual

record and apply its expertise facilitates judicial review;

(2) permitting agencies to grant the relief requested

conserves judicial resources; and (3) providing agencies the

opportunity to correct their own errors fosters

administrative autonomy.” Goldberg v. Beeler, 82 F. Supp.

2d 302, 309 (D.N.J. 1999), aff'd, 248 F.3d 1130 (3d Cir.

2000); see also Moscato v. Federal Bureau of Prisons, 98

F.3d 757, 761 (3d Cir. 1996). Although exhaustion of

administrative remedies is not required where exhaustion

would not promote these goals, see, e.g., Gambino v. Morris,

134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required

where petitioner demonstrates futility); Lyons v. U.S.

Marshals, 840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may

Page 7 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 7 of 13 PageID: 87
be excused where it “would be futile, if the actions of the

agency clearly and unambiguously violate statutory or

constitutional rights, or if the administrative procedure is

clearly shown to be inadequate to prevent irreparable

harm”); Carling v. Peters, 2000 U.S. Dist. LEXIS 10288, 2000

WL 1022959, *2 (E.D. Pa. 2000) (exhaustion not required

where delay would subject petitioner to “irreparable

injury”), the exhaustion requirement is not excused lightly.

Indeed, it has been long established that an inmate’s

unjustified failure to pursue administrative remedies

results in procedural default warranting decline of judicial

review. The Court of Appeals addressed this issue in

Moscato, 98 F. 3d 757, the case where an inmate filed a §

2241 petition after the Central Office had denied his

administrative appeal as untimely. The Court of Appeals

pointed out that the inmate’s failure to satisfy the time

limits of the BOP's administrative remedy program resulted

in a procedural default, see id. at 760, rendering judicial

review of his habeas claim unwarranted, that is, unless the

inmate can demonstrate cause for his failure to comply with

the procedural requirement and, in addition, actual 1

 The “cause” standard requires a showing that some external 1

objective factor impeded the inmate’s efforts to comply with the

procedural bar. See Murray v. Carrier, 477 U.S. 478, 488 

(1986); United States v. Pelullo, 399 F. 3d 197, 223 (3d Cir.

2005) (“Examples of external impediments . . . include

Page 8 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 8 of 13 PageID: 88
prejudice resulting from the alleged violation. See id. at

761. Clarifying the rationale of its decision, the Moscato

Court explained that application of the cause and prejudice

rule to habeas review of BOP proceedings insures that

prisoners do not circumvent the agency and needlessly swamp

the courts with petitions for relief, and promotes such

goals of the exhaustion requirement, such as allowing the

agency to develop a factual record and apply its expertise

facilitates judicial review, conserving judicial resources,

and fostering administrative autonomy by providing the

agency with an opportunity to correct its own errors. See

id. at 761-62; see also Gambino, 134 F.3d at 171; Lyons v.

U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988).

12. The BOP Administrative Remedy Program is a three-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. See

28 C.F.R. § 542.13(a). If informal resolution fails or is

interference by officials”) (citations and internal quotation

marks omitted); Johnson v. Pinchak, 392 F.3d 551, 563 (3d Cir.

2004) (“cause” typically involves a novel constitutional rule, a

new factual predicate, hindrance by officials in complying with

the procedural rule, or akin). In contrast, a procedural default

caused by ignorance of the law or facts is binding on the habeas

petitioner. See Murray, 477 U.S. at 485-87.

Page 9 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 9 of 13 PageID: 89
waived, an inmate shall 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 shall submit a BP-10 Appeal to the Regional Director

of the BOP within 20 days of the date the Warden signed the

response. See 28 C.F.R. § 542.15(a). The inmate shall

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

30 days of the day the Regional Director signed the

response. See id. Appeal to the General Counsel is the

final administrative appeal. See id. If responses are not

received by the inmate within the time allotted for each

reply, “the inmate may consider the absence of a response to

be a denial at that level.” 28 C.F.R. § 542.18.

13. Therefore, Petitioner is strongly encouraged to file amended

petitions in Watts v. BOP and in Watts v. Zickefoose only if

his jail-time-credits and/or RDAP-based-credits challenges

were duly exhausted administratively or Petitioner can make

a showing as to why such exhaustion shall be excused.

Page 10 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 10 of 13 PageID: 90
IT IS, therefore, on this 31st day of May , 2011,

ORDERED that the Clerk shall administratively terminate this

action for failure to comply with the requirements posed by

Habeas Rule 2(e); and it is further

ORDERED that the Clerk shall make a new and separate docket

entry in this matter reading “CIVIL CASE ADMINISTRATIVELY

TERMINATED”; and it is further

ORDERED that the Clerk shall open two new and separate

actions for Petitioner, Watts v. BOP and Watts v. Zickefoose; and

it is further

ORDERED that the Clerk shall designate “Edward Watts,

13013-052, Federal Correctional Institution, Fort Dix, P.O. Box

2000, Fort Dix, NJ 08640, Pro Se” as Petitioner in each of these

new actions; and it is further

ORDERED that the Clerk shall designate “Bureau of Prisons”

as Respondent in Watts v. BOP, and “Warden Donna Zickefoose” as

Respondent in Watts v. Zickefoose; and it is further

ORDERED that the Clerk shall designate “Nature of Suit: 530

Habeas Corpus” and “Cause: 28:2241 Petition for Writ of Habeas

Corpus” in each of these two new actions; and it is further

ORDERED that the Clerk shall file this Memorandum Opinion

and Order in both Watts v. BOP and Watts v. Zickefoose; and it is

further

Page 11 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 11 of 13 PageID: 91
ORDERED that the Clerk shall file Petitioner’s motion,

docketed in this matter as Docket Entry No. 1, in both Watts v.

BOP and Watts v. Zickefoose, designating such motion as “Original

Petition.” The Clerk need not docket in Watts v. BOP and Watts

v. Zickefoose the documents docketed in this action as Docket

Entries Nos. 1-1, 1-2, 1-3 and 1-4, or any other documents

docketed in the instant matter; and it is further

ORDERED that the Clerk shall administratively terminate both

Watts v. BOP and Watts v. Zickefoose by making a new and separate

docket entry in each of these two matters reading “CIVIL CASE

ADMINISTRATIVELY TERMINATED.” Such administrative termination

shall not be construed as withdrawal of this Court’s jurisdiction

over Watts v. BOP or Watts v. Zickefoose, and the Court will

direct the Clerk to reopen these matters in the event Petitioner

timely files his amended petition in either one of these matters;

and it is further

ORDERED that, in the event Petitioner wishes to challenge

BOP’s denial of jail-time credits, Petitioner shall file, within

45 days from the date of entry of this Memorandum Opinion and

Order, Petitioner’s amended petition in Watts v. BOP, detailing

Petitioner’s challenges and administrative exhaustion of the

same; and it is further

ORDERED that, in the event Petitioner wishes to challenge

BOP’s denial of RDAP-based credits, Petitioner shall file, within

Page 12 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 12 of 13 PageID: 92
45 days from the date of entry of this Memorandum Opinion and

Order, Petitioner’s amended petition in Watts v. Zickefoose,

detailing Petitioner’s challenges and administrative exhaustion

of the same; and it is further

ORDERED that, in the event Petitioner elects to file an

amended petition either in Watts v. Zickefoose or Watts v. BOP,

Petitioner shall submit, together with each amended petition,

either Petitioner’s filing fee of $5.00 or Petitioner’s

application to proceed in forma pauperis; and it is finally

ORDERED that the Clerk shall serve this Memorandum Opinion

and Order upon Petitioner by regular U.S. mail, together with:

(a) two blank § 2241 petition forms; (b) two application to

proceed in forma pauperis for incarcerated individuals; and (c)

copies of the docket sheets created in Watts v. BOP and Watts v.

Zickefoose.

s/Robert B. Kugler 

ROBERT B. KUGLER

United States District Judge

Page 13 of 13

Case 1:11-cv-00912-RBK Document 8 Filed 05/31/11 Page 13 of 13 PageID: 93