UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

SAMUEL ACEVEDO MUNIZ, :

:

Petitioner, :

:

v. :

:

DONNA ZICKEFOOSE, :

:

Respondent. :

 :

Civil Action No. 10-2444 (RBK) 

 

MEMORANDUM OPINION AND ORDER

IT APPEARING THAT:

1. On May 13, 2010, Petitioner, a federal prisoner confined at

the F.C.I. Fort Dix, filed a § 2241 petition challenging

calculation of his sentence. See Docket Entry No. 1. The

Petition arrived together with Petitioner's duly executed in

forma pauperis application. See Docket Entry No. 1-2.

2. Petitioner's challenge questioned the calculation of his

period of federal confinement; he suggested that the 1

Petition was duly exhausted. See Docket Entry No. 1. The

Court, therefore, granted Petitioner in forma pauperis

status and directed Respondent to answer the Petition. See

Docket Entry No. 2. 

 Specifically, Petitioner was seeking to shorten the term 1

of his federal confinement by the period from June 9, 1999 (the

date of his arrest) to July 11, 2001, which represented the time

spent Petitioner spent in state custody prior to commencement of

his federal confinement, and which period was credited against

Petitioner's federal period of confinement by his federal judge

pursuant to the U.S. Sentencing Guidelines Manual § 5G1.3.

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3. Respondent moved for extension of time to answer since, at

that point, Respondent was in the process of recalculating

Petitioner's sentence by factoring in the time credited by

his federal sentencing judge against Petitioner's federal

confinement. See generally, Docket Entries Nos. 4, 5 and 6.

4. On January 25, 2011, Respondent moved this Court for

dismissal of this matter as moot on the grounds that

Petitioner's sentence was, by that time, already adjusted

giving Petitioner the very relief Petitioner sought in his

Petition. See Docket Entry No. 6.

5. Upon examination of the documents attached to Respondent's

motion, the Court found Respondent's position well merited

and, correspondingly, dismissed the Petition as moot; this

Court's order directing Respondent's filing of an answer was

vacated accordingly. See Docket Entries Nos. 7 and 8.

6. On February 9, 2011, Petitioner filed a submission at bar,

which Petitioner titled "Informative Motion & Request for

Determination" ("Motion"). See Docket Entry No. 9.

7. In his Motion, Petitioner asserted that, although he had his

federal period of confinement adjusted to correspond to the

downgrading given to him by his federal sentencing judge

pursuant to § 5G1.3, Petitioner now wished to seek another

recalculation. Specifically, when Respondent recalculated

Petitioner's federal period of confinement to a shorter term

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(to reflect the wishes of Petitioner's sentencing judge),

Respondent correspondingly recalculated the good-conducttime ("GCT") credits available to Petitioner in order to

match this, now shortened, term of Petitioner's federal

confinement. Petitioner, however, argued in his Motion

that, while his federal period of confinement was properly

reduced, Petitioner should have been entitled to keep his

original GCT credits, i.e., the GCT credits corresponding to

the entire length of his federal sentence, rather than to

the period of his federal confinement reduced by the amount

of time given to Petitioner by his federal judge in light of

the time spent by Petitioner in state custody prior to the

commencement of his federal confinement. See id.

8. Respondent filed an opposition to Petitioner's Motion

arguing that this new line of Petitioner's challenges was

wholly unexhausted and, in addition, that a number of

federal courts found Petitioner's GCT position without

merit. See Docket Entry No. 10.

9. Petitioner traversed to Respondent's opposition, see Docket

Entry No. 11, effectively stating that, once Petitioner's

federal judge factored in Petitioner's time spent in state

custody prior to commencement of Petitioner's federal

confinement, Petitioner's federal confinement retroactively

began at the time when that state custody period began to

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run and, thus, the GCT credits should be calculated on the

basis of both Petitioner's period of federal confinement and

his period of pre-federal state custody that was factored in

by his federal sentencing judge under § 5G1.3. In

addition, Petitioner asserted that his GCT challenges should

be deemed duly exhausted because these challenges were, in a

way, implied in Petitioner's administrative applications

requesting reduction of his period of federal confinement by

the period of pre-federal-confinement state custody factored

into Petitioner's sentence by his federal sentencing judge. 

See id. 

10. Two distinct considerations drive this Court's analysis at

this juncture. One is whether Petitioner's instant GCT

challenges are properly raised in this matter by means of

the Motion at hand, while another is whether these GCT

challenges should be deemed duly exhausted (and, if

exhausted, then meriting habeas relief). In order to

address these considerations, the Court finds it warranted

to visit, without making a legal finding, the substantive

law of Petitioner's now-asserted GCT claim.

11. As of now, this Court is not aware of any decision issued by

the United States Court of Appeals for the Third Circuit

with regard to the challenges substantially similar to

Petitioner's GCT claim. 

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12. As Respondent correctly noticed, a number of federal

district courts addressed the GCT arguments raised in the

context substantively indistinguishable from Petitioner's

instant GCT challenges. See Docket Entry No. 7, at 2

(citing Schuschny v. Fisher, 2008 WL 5381493, *3 (N.D. Fla.

Dec. 19, 2008); Gouch v. Eichenlaub, 2008 WL 2831250, *1

(E.D. Mich. July 21, 2008); Green v. United States of

America, 2009 WL 2982864, *3 (N.D. Oh. September 11, 2009);

Hickman v. United States, 2006 WL 20489, *2 (S.D.N.Y.

2006)). In fact, by now at least one circuit court

addressed this very challenge. See Schleining v. Thomas,

2011 U.S. App. LEXIS 13076 (9th Cir. June 27, 2011). The

Ninth Circuit's decision in Schleining concluded, and not

unreasonably, that GCT credits cannot be given for the time

exceeding the period actually served in federal confinement. 

See id. at *3 (providing a detailed discussion of the issue,

citing a panoply of relevant authorities and observing,

inter alia, that "[u]nder the terms of 18 U.S.C. §

3624(b)(1), GCT can accrue only on the time a prisoner has

'actually served' on his federal sentence. See Barber v.

Thomas, 130 S. Ct. 2499, 2506-07 (2010). Pursuant to 18

U.S.C. § 3585(a), 'a sentence to a term of imprisonment

commences on the date the defendant is received in custody

awaiting transportation to, or arrives voluntarily to

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commence service of sentence at, the official detention

facility at which the sentence is to be served.' Although

this court has not yet been called upon to determine when a

federal sentence begins for a prisoner already serving a

state term of imprisonment, other courts have interpreted to

mean that a federal sentence cannot begin before the

defendant has been sentenced in federal court. See United

States v. Gonzalez, 192 F.3d 350, 355 (2d Cir. 1999)

(holding that a district court cannot 'backdate' a federal

sentence to the beginning of a state prison term on related

state charges); United States v. Flores, 616 F.2d 840, 841

(5th Cir. 1980) ('[A] federal sentence cannot commence prior

to the date it is pronounced, even if made concurrent with a

sentence already being served')"). 

13. However, the Schleining conclusions, while representing the

what is currently prevalent law on the issue, differ from

conclusions reached by a minority of courts. Perhaps the

most notable decision among this minority of holdings is

Lopez v. Terrell, 697 F. Supp. 2d 549 (S.D.N.Y. 2010), a

detailed and lengthy discussion which, to the degree such

lengthy discussion could be summarized, might be reduced to

an observation that the phrase "term of imprisonment" is

ambiguous in the sense that it could include or exclude presentence time, and, if the pre-sentence time is included,

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than the GCT credit calculation on the basis of the sum of

the period of federal confinement and the pre-federal state

confinement factored into the federal sentence under § 5G1.3

might be warranted.

14. At this juncture, the Court's reaching this issue on merits

is premature. However, the above-outlined disparity between

the majority and minority views is highly instructive in one

respect, i.e., it indicates that an inmate's administrative

challenges seeking recalculation of his/her federal term of

confinement to reflect the § 5G1.3 downgrading cannot be

conflated with and/or read as automatically implying the

inmate's administrative challenges based on recalculation of

GCT credit after the adjustment reflecting § 5G1.3

downgrading is done. In other words, the BOP officials

presented with such GCT credit challenges might or might not

grant the requested relief, since they may follow either the

rationale articulated in Schleining or may adopt the logic

of Lopez. 

15. The aforesaid conclusion returns this Court to one of its

two key considerations present at this juncture, i.e., the

issue of exhaustion. 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

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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 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

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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 prejudice resulting 2

 The “cause” standard requires a showing that some 2

external 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

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

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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). Here, Petitioner's

traverse to Respondent's opposition to Petitioner's Motion

does not set forth any facts warranting excuse of

exhaustion. Moreover, granted the above-detailed majorityminority split between the courts (as to the GCT credit

issues raised in the circumstances now being experienced by

Petitioner) is, in and by itself, the strongest argument in

favor of exhaustion. Simply put, if -- as it is the case

here -- the BOP elected to follow the rationale adopted by

the majority of courts and exemplified by Schleining, the

BOP shall be provided with an administrative opportunity to

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

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address the logic of Lopez and either correct the BOP's

Schleining-like determination or express its position as to

why the holding of Lopez is without merit. Therefore,

Petitioner's GCT credit challenges should be dismissed,

without prejudice, as unexhausted.

16. Correspondingly, Petitioner's GCT challenges are improperly

raised by means of the Motion at hand. As the previous

discussion demonstrates, Petitioner's GCT challenges are

qualitatively different from his initial claim and are based

on the factual predicate distinct from the one alleged in

the Petition (i.e., the Motion asserts that, after the BOP

adjusted Petitioner's period of federal confinement by

factoring in the downgrading granted to Petitioner by his

federal sentencing judge under § 5G1.3, the BOP unduly

recalculated Petitioner's GCT credits down; in contrast, the

Petition that gave rise to this matter was maintaining that

the BOP was refusing to factor into Petitioner's period of

federal confinement the downgrading granted to Petitioner by

his federal sentencing judge under § 5G1.3). Therefore,

Petitioner's raising of this new CGT claim and his reliance

of a different factual predicate was a procedural error,

since a litigant cannot plead claims, state and/or support

facts by any non-pleading document, be it moving papers, an

opposition to adversaries' motion, the litigant's traverse,

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etc. See, e.g., Bell v. City of Phila., 275 Fed. App'x 157,

160 (3d Cir. 2008); Gilmour v. Gates, McDonald & Co., 382

F.3d 1312, 1315 (11th Cir. 2004); Veggian v. Camden Bd. of

Educ., 600 F. Supp. 2d 615, 628 (D.N.J. 2009). Simply put,

what Petitioner filed as the Motion in this action should

have been filed -- after due administrative exhaustion -- as

a new and separate § 2241 petition.

IT IS, therefore, on this 21st day of July , 2011,

ORDERED that the Clerk shall reopen this matter for the

Court's examination of Petitioner's Motion, Docket Entry No. 9,

by making a new and separate entry on the docket reading "CIVIL

CASE REOPENED": and it is further

ORDERED that Petitioner's Motion, Docket Entry No. 9, is

denied in the sense that it is construed as a new and separate §

2241 petition; and it is further

ORDERED that the Clerk shall open a new and separate matter

for Petitioner, designating "Cause: 28:2241 Petition for Writ of

Habeas Corpus (federal)" and "Nature of Suit: 530 Habeas Corpus

(General)"; and it is further

ORDERED that, in this new and separate matter, the Clerk

shall designate "SAMUEL ACEVEDO MUNIZ, ID NO. 18335-069, F.C.I.

FT. DIX, P.O. BOX 38 WEST 5812, FORT DIX, NEW JERSEY 08640" as

"Petitioner Pro Se" and "DONNA ZICKEFOOSE" as "Respondent"; and

it is further

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ORDERED that, for the purposes of that new and separate

matter, Petitioner is granted in forma pauperis status on the

basis of his in forma pauperis application submitted in the

instant matter; and it is further

ORDERED that the Clerk shall docket Petitioner's motion

(docketed in this matter as Docket Entry No. 9) in that new and

separate matter opened for Petitioner; the Clerk shall designate

that docket entry as "SECOND PETITION" and as docket entry no. 1

in that new and separate matter; and it is further

ORDERED that the Clerk shall docket these Memorandum Opinion

and Order in that new and separate matter opened for Petitioner;

the Clerk shall designate that docket entry as "ORDER" and as

docket entry no. 2; and it is further 

ORDERED that the Clerk shall assign this new and separate

matter to the undersigned; and it is further

ORDERED that the aforesaid SECOND PETITION shall be deemed

dismissed, without prejudice, for Petitioner's failure to exhaust

administrative remedies; and it is further

ORDERED that the Clerk shall administratively terminate this 

new § 2241 matter opened for Petitioner by making a separate

entry on the docket of that new matter reading "CIVIL CASE

ADMINISTRATIVELY TERMINATED"; and it is further

ORDERED that, in the event Petitioner exhausted his

challenges based on downward recalculation of his good-conduct13

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time credits by the time of entry of these Memorandum Opinion and

Order, Petitioner shall advise this Court of the same in writing

within thirty days from the date of entry of these Memorandum

Opinion and Order. In the event Petitioner duly exhausted his

administrative remedies and timely advises this Court of the

same, the Court will direct the Clerk to reopen the new § 2241

matter opened for Petitioner and will direct Respondent to answer

Petitioner's challenges set forth in the SECOND PETITION; and it

is further

ORDERED that the Clerk shall serve these Memorandum Opinion

and Order upon Petitioner by certified mail, return receipt

requested, together with a copy of the docket sheet created in

the new and separate § 2241 matter opened for Petitioner (in

order to ensure Petitioner's opportunity to timely advise the

Court of his exhaustion of administrative remedies as to his GCT

claims, if such exhaustion actually took place and was completed

by the time of entry of these Memorandum Opinion and Order); and

it is further

ORDERED that the Clerk shall serve these Memorandum Opinion

and Order upon Respondent by means of electronic delivery. No

action by Respondent is required at the instant juncture with

regard to the new and separate § 2241 matter opened for

Petitioner; and it is finally

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ORDERED that the Clerk shall close the file on this matter

by making a new and separate entry of the docket of this matter

reading "CIVIL CASE CONCLUSIVELY CLOSED."

s/Robert B. Kugler 

Robert B. Kugler, 

United States District Judge

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