UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

SAMUEL ACEVEDO MUNIZ, :

:

Petitioner, :

:

v. :

:

DONNA ZICKEFOOSE, :

:

Respondent. :

 :

:

SAMUEL ACEVEDO MUNIZ, :

:

Petitioner, :

:

v. :

:

DONNA ZICKEFOOSE, :

:

Respondent. :

 

Civil Action No. 10-2444 (RBK) 

 

Civil Action No. 11-4200 (RBK)

MEMORANDUM OPINION AND ORDER

APPLIES TO BOTH ACTIONS

This pair of matters, both of which ensued from the same

pleading and involved a motion that followed it, have already

enjoyed a substantial number of procedural twist and turns, and

they now come before the Court upon Petitioner's additional

motion, seeking reconsideration of this Court's prior

determination, and it appearing that: 

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

the F.C.I. Fort Dix, filed a § 2241 petition ("Petition"). 

See Docket Entry No. 1. The Petition arrived together with

Petitioner's duly executed in forma pauperis ("IFP")

application. See Muniz v. Zickefoose ("Muniz-I"), Civ.

Case 1:11-cv-04200-RBK Document 10 Filed 09/30/11 Page 1 of 22 PageID: 48
Action. No. 10-2444 (RBK) (D.N.J.), Docket Entry No. 1-2. 

In light of that IFP application, Petitioner was granted IFP

status for the purposes of his Muniz-I action. The

allegations stated in the Petition challenged the

calculation of Petitioner's period of federal confinement. 

See id. Docket Entry No. 1. The allegations indicated that

Petitioner was seeking to shorten the term of his federal

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

arrest) to July 11, 2001, which represented the time

Petitioner spent in state custody prior to commencement of

his federal confinement, and which period was, allegedly,

used by Petitioner's federal sentencing judge in order to

adjust Petitioner's sentence downward, pursuant to the U.S.

Sentencing Guidelines Manual § 5G1.3. See id. The 1

 Petitioner was convicted as a result of criminal 1

proceedings conducted in the United States District Court for the

District of Puerto Rico. See USA v. Acevedo-Muniz et al., Crim.

Action No. 99-0307 (PG) (D.P.R.). In that matter, Samuel

Acevedo-Muniz, Waldemar Burgos-Chaparro, Luis Moro-Hernandez,

Pablo Soto-La-Santa, Eduardo D. Rivera-Moreno, Samuel

Velazquez-Caraballo and Javier Acevedo-Gonzalez were charged with

a number of drug-related offenses. See id. The docket in that

matter indicates that Petitioner, charged under his hyphenated

form of last name, i.e., Acevedo-Muniz, was also known as "Sammy

Segueta" and "Sammy Big Boy." See id. As a result of these

proceedings Petitioner was sentenced to 240 months of

imprisonment. See id. Petitioner's § 2255 motion, his

"informative" motion, motion for reconsideration and appeal to

the United States Court of Appeals for the First Circuit were

denied. See id.; see also Acevedo-Muniz v. USA, Civil Action No.

02-1136 (PG) (D.P.R.); USA v. Acevedo-Muniz et al., USCA No. 09-

1827 (1st Cir.).

2

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Petition asserted that this line of challenges was duly

exhausted administratively. See id. The Court, therefore,

directed Respondent to answer the Petition. See Docket

Entry No. 2. 

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

that point in time, the Bureau of Prisons ("BOP") was,

apparently, already in the process of recalculating

Petitioner's federal sentence by factoring in the downward

adjustment ordered by his federal sentencing judge. See

id., Docket Entries Nos. 4, 5 and 6. In other words, it was

appearing that the BOP was about to grant Petitioner the

very relief Petitioner was requesting in his Muniz-I matter. 

See id.

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

dismissal of this matter as moot on the grounds that

Petitioner's federal sentence was, in fact, recalculated by

the BOP in accordance with the downward adjustment ordered

by Petitioner's federal sentencing judge. See id., Docket

Entry No. 6. After examining the documents attached to

Respondent's motion, the Court found Respondent's position

well-merited and, correspondingly, dismissed the Petition as

moot; the Court's prior order (directing Respondent's filing

of an answer) was, accordingly, vacated as superfluous. See

id., Docket Entries Nos. 7 and 8. That development took

3

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place on January 25, 2011, and Petitioner's Muniz-I action

was terminated shortly thereafter. See id.

4. On February 9, 2011, Petitioner filed, in his Muniz-I, a new

submission; it was titled "Informative Motion & Request for

Determination" ("Motion-I"). See id., Docket Entry No. 9.

In his Motion-I, Petitioner asserted that, although he had

his federal period of confinement recalculated to a shorter

term (which reflected the downward adjustment ordered by his

federal sentencing judge pursuant to § 5G1.3), Petitioner

now wished to seek another recalculation. See id. 

Specifically, Petitioner wished: (a) to retain the larger

amount of good-conduct-time ("GCT") credits that were

applicable to his federal sentence before it was

recalculated to a shorter term; and (b) to have this larger

amount of CGT credits applied to Petitioner's now-shorter,

recalculated, sentence (which entitled Petitioner to a

smaller amount of GCT credits corresponding to that new,

shorter period). See id. See id. Respondent filed an 2

opposition to Petitioner's Motion-I arguing that this new

line of Petitioner's challenges (asserting that he was 

 In other words, once the BOP recalculated Petitioner's 2

federal period of confinement down to a shorter term (to reflect

the wishes of Petitioner's federal sentencing judge), the BOP

correspondingly recalculated the good-conduct-time ("GCT")

credits available to Petitioner to match this, now shortened,

term of imprisonment. Petitioner, however, wished to apply the

old, larger amount of GCT credits to his shortened confinement. 

4

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entitled to keep his old amount of GCT credits applicable to

his old longer federal sentence, while serving the nowrecalculated shorter federal sentence) was wholly

unexhausted. See id., Docket Entry No. 10. In addition,

Respondent noted, in passing, that a number of federal

courts found this type of GCT challenges without merit. See

id. Petitioner traversed to Respondent's opposition. See

Docket Entry No. 11. In addition, Petitioner's traverse 3

indicated his position that: (a) his newly-minted GCT

challenges should be deemed duly exhausted because

Petitioner believes that these challenges were "somewhat

implied" in his administrative applications requesting

recalculation of his period of federal prison term in

accordance with the downward adjustment ordered by his

federal sentencing judge; and (b) his newly-minted GCT 4

 Basically, Petitioner argued that, since his federal 3

judge downward adjusted his sentence by reducing it by the time

Petitioner's spent in state custody prior to commencement of

Petitioner's federal sentence, Petitioner's federal confinement

should have been deemed beginning, retroactively, at the time

when that state custody period began to 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 used for the purposes of downward adjustment by

his federal sentencing judge under § 5G1.3.

 The response Petitioner obtained from the Central Office 4

of the BOP indicates that Petitioner did not hint, even in the

vaguest terms, the presence of any GCT challenges in his

administrative grievances filed during his exhaustion of his

claim that his federal sentence should be recalculated to reflect

the downward adjustment ordered by the District of Puerto Rico. 

5

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challenges should be resolved in the Muniz-I action. See

id. 

5. This Court disagreed with Petitioner's position. See id.,

Docket Entry No. 13. The Court's decision to that effect

was lengthy and detailed, see id., and another recital of

the same appears unwarranted in this Memorandum Opinion and

Order. Therefore, it should suffice to state merely that

the Court pointed out that: 

a. Petitioner's newly-minted GCT challenges were based on

a wholly different factual predicate than his original

Petition, see id. at 11 (pointing out that

"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

See Muniz-I, Docket Entry No. 1-1, at 10 (indicating that

Petitioner raised Barden challenges before his warden and the

Regional Office of the BOP and obliviously mentioned the issue of

downward adjustment only during his appeal to the Central Office

from the denial of Barden credit by the BOP Regional Office). 

6

Case 1:11-cv-04200-RBK Document 10 Filed 09/30/11 Page 6 of 22 PageID: 53
into Petitioner's period of federal confinement the

downgrading granted to Petitioner by his federal

sentencing judge under § 5G1.3)") (emphasis in

original);

b. Procedurally, Petitioner could not raise his newlyminted GCT challenges in Muniz-I by stating these new

challenges in his Motion-I or in his traverse, see id.

at 11-12; 

c. Petitioner's newly-minted GCT challenges were subject

to dismissal, without prejudice, as unexhausted. See 5

id. at 5-11. 

6. Therefore, the Court directed the Clerk to open a new civil

matter for Petitioner, Muniz v. Zickefoose ("Muniz-II"),

Civil Action No. 11-4200 (RBK). The Court directed the

Clerk to file Petitioner's Motion-I in Muniz-II, qualifying

it as Petitioner's new pleading asserting his newly-minted

GCT challenges. See Muniz-II, Docket Entries Nos. 1 and 2. 

 In connection with the finding, this Court painstakingly 5

detailed to Petitioner the rationale underlying the exhaustion

requirement and, in addition, pointed out that enforcement of

exhaustion requirement appears particularly fitting in regard to

Petitioner's newly-minted GCT challenges, since: (i) there have

been no decision as to this issue by the Court of Appeals for the

Third Circuit; (ii) other federal courts that addressed this

issue disagreed as to the outcome, with some courts finding this

type of challenges without merit, while other courts found them

meriting habeas relief; (iii) the BOP could follow either line of

these judicial determinations; and, in any event, (iv) the BOP

should have been allowed to resolve Petitioner's newly-minted GCT

challenges administratively. 

7

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In light of this Court's grant of IFP status to Petitioner

for the purposes of Muniz-I, Petitioner's IFP status was

continued to Muniz-II and no collection of filing fee was

ordered. See id., Docket Entry No. 2. In addition, out of

abundance of caution, the Court informed Petitioner that, if

Petitioner did actually exhaust his GCT challenges before

all three levels of the BOP, Petitioner should notify this

Court accordingly, and -- if so notified -- the Court would:

(a) direct the Clerk to reopen Muniz-II; (b) order

Respondent to answer this new line of Petitioner's

challenges; and (c) resolve Petitioner's newly-minted GCTcredit-based challenges on merits. See id.

7. In response, Petitioner filed, first, his: (a) appeal as to

Muniz-I and Muniz-II; and, then, (b) Petitioner's motion for

reconsideration ("Motion-II") currently before this Court. 

See, e.g., Muniz-II, Docket Entries Nos. 5-8. In his 6

Motion-II, Petitioner verified that his newly-minted GCT

challenges were wholly unexhausted; however, he asserted

that the exhaustion requirement should not be enforced

because:

a. Petitioner was of opinion that the exhaustion would be

futile simply because Respondent's counsel cited a line

 Petitioner notice of appeal preceded his Motion-II by two 6

and a half weeks. See Muniz-II, Docket Entries No. 5-9.

8

Case 1:11-cv-04200-RBK Document 10 Filed 09/30/11 Page 8 of 22 PageID: 55
of out-of-the-Circuit cases where the courts found this

type of challenges without merit, and Petitioner

believed that the BOP was more likely to follow this

line of cases rather than the line of cases favorable

to Petitioner, see Muniz-II, Docket Entry No. 8, at 4;

and

b. Petitioner was of opinion that requiring him to exhaust

his newly-minted GCT challenges administratively would

be unjust, since:

i. Petitioner believed that the BOP outright refuses

to comply with all judicial decisions, see id. at

4-5;

ii. Petitioner felt that the possibility that he would

be charged postage (i.e., that he might pay for

stamps) in connection with his submission of

administrative appeals was unjust and, therefore,

warrants excuse from the exhaustion requirement,

see id. at 5;

iii. Petitioner might experience problems executing his

administrative submissions. In connection with

this assertion, Petitioner suddenly declared that

he "cannot understand, read, write or speak

English." Id. at 5. 

9

Case 1:11-cv-04200-RBK Document 10 Filed 09/30/11 Page 9 of 22 PageID: 56
8. At the outset of its discussion of Petitioner's latest

assertions, the Court note that, under Venen v. Sweet, 758

F.2d 117, 120 (3d Cir. 1985), "the timely filing of a notice

of appeal is an event of jurisdictional significance,

immediately conferring jurisdiction on a Court of Appeals

and divesting a district court of its control over those

aspects of the case involved in the appeal." Therefore,

technically, this Court is without jurisdiction to address

Petitioner's challenges raised in his Motion-II until the

Court of Appeals stays Petitioner's appellate proceedings

and remands Petitioner's claims to this Court for

disposition of his Motion-II. However, recognizing

Petitioner's interests in a speedy resolution of his

challenges (especially in light of Petitioner's obligation

to raise his newly-minted GCT challenges to the BOP, which

might take time), as well as being mindful of the Court of

Appeals' interest in processing appellate cases in an

expedited fashion, the Court finds that the interests of

judicial economy warrant this Court's entry of its decision

as to Petitioner's Motion-II. The Court, therefore, will

grant Petitioner's request to the extent that it would

10

Case 1:11-cv-04200-RBK Document 10 Filed 09/30/11 Page 10 of 22 PageID: 57
address the merits of Petitioner's Motion-II instead of

dismissing it for lack of jurisdiction. 

7

9. A motion for reconsideration is a device of limited utility.

There are only four grounds upon which a motion for

reconsideration might be granted: (a) to correct manifest

errors of law or fact upon which the judgment was based; (b)

to present newly-discovered or previously unavailable

evidence; (c) to prevent manifest injustice; and (d) to 8

accord the decision to an intervening change in prevailing

 The Court of Appeals guided that a litigant's motion for 7

reconsideration should be deemed "granted" when the court (the

decision of which the litigant is seeking a reconsideration of)

addresses the merits — rather than the mere procedural propriety

or lack thereof- of that motion. See Pena-Ruiz v. Solorzano, 281

Fed. App'x 110 at *2-3, n.1 (3d Cir. 2008). However, the very

fact of the court's review does not prevent the court performing

such reconsideration analysis (of the original application, as

supplanted by the points raised in the motion for

reconsideration) from reaching a disposition identical — either

in its rationale or in its outcome, or in both regards — to the

court's decision previously reached upon examination of the

original application. See id.

 In the context of a motion to reconsider, the term 8

"manifest injustice" "[generally . . . means that the Court

overlooked some dispositive factual or legal matter that was

presented to it," In re Rose, 2007 U.S. Dist. LEXIS 64622, at *3

(D.N.J. Aug. 30, 2007), making the definition an overlap with the

prime basis for reconsideration articulated in Harsco, that is,

the need "to correct manifest errors of law or fact upon which

the judgment was based." Alternatively, the term "manifest

injustice" could be defined as "'an error in the trial court that

is direct, obvious, and observable.'" Tenn. Prot. & Advocacy,

Inc. v. Wells, 371 F.3d 342, 348 (6th Cir. 2004) (quoting Black's

Law Dictionary 974 (7th ed. 1999)). "[M]ost cases [therefore,]

use the term 'manifest injustice' to describe the result of a

plain error." Douglass v. United Services Auto. Ass'n, 79 F.3d

1415, 1425 (5th Cir. 1996).

11

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law. See 11 Charles A. Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 2810.1 (2d ed. 1995);

see also Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d

Cir. 1985), cert. denied, 476 U.S. 1171 (1986) (purpose of

motion for reconsideration is to correct manifest errors of

law or fact or to present newly discovered evidence). "To

support reargument, a moving party must show that

dispositive factual matters or controlling decisions of law

were overlooked by the court in reaching its prior

decision." Assisted Living Associates of Moorestown,

L.L.C., v. Moorestown Tp., 996 F. Supp. 409, 442 (D.N.J.

1998). In contrast, mere disagreement with the district

court's decision is an inappropriate ground for a motion for

reconsideration: such disagreement should be raised through

the appellate process. See id. (citing Bermingham v. Sony

Corp. of America, Inc., 820 F. Supp. 834, 859 n.8 (D.N.J.

1992), aff'd, 37 F.3d 1485 (3d Cir. 1994); G-69 v. Degnan,

748 F. Supp. 274, 275 (D.N.J. 1990)); see also Drysdale v.

Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001) (a motion

for reconsideration may not be used as a means to reargue

unsuccessful theories). Consequently, "[t]he Court will

only entertain such a motion where the overlooked matters,

if considered by the Court, might reasonably have resulted

in a different conclusion." Assisted Living, 996 F. Supp.

12

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at 442; see also Continental Cas. Co. v. Diversified Indus.,

Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995) ("[M]otions for

reconsideration should be granted sparingly"); Edward H.

Bohlin, Co. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir.

1993) (a district court "has considerable discretion in

deciding whether to reopen a case under Rule 59(e)"). 

10. Even a cursory review of Petitioner's assertions in support

of his Motion-II indicate that reconsideration of this

Court's prior decision is unwarranted. Indeed, Petitioner's

Motion-II verifies that: (a) the Court did not commit any

errors of law or fact upon which it based its judgment; (b)

Petitioner offers this Court no newly-discovered or

previously unavailable evidence; (c) while Petitioner

numerously tossed the term "unjust," he made no assertion

indicating that this Court committed any error, moreover,

plain error; and (d) he did not suggest that there was an

intervening change in prevailing law, and this Court, on its

own, is aware of no such change. For these reasons,

Petitioner's Motion-II does not warrant reconsideration of

the Court's prior decision.

11. However, this Court's discussion would be incomplete without

at least a brief review of the bases asserted by Petitioner

in support of his Motion-II. The Court, therefore,

addresses these bases seriatim.

13

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a. It is axiomatic that Habeas Rule 2(e) requires separate

petitions to challenge separate determinations. See 28

U.S.C. § 2254 Rule 2(e), applicable to § 2241 cases

through Rule 1(b). Here, Petitioner's original

Petition challenged the BOP's decision to calculate

Petitioner's sentence without factoring in the downward

adjustment ordered by Petitioner's federal sentencing

judge. That determination was exhausted

administratively; it was addressed in Muniz-I and

became moot when the BOP recalculated Petitioner's

sentence to a shorter term, by factoring the aforesaid

downward adjustment. In contrast, when Petitioner,

after having his federal sentence shortened, learned of

the BOP's decision to recalculated the amount of

Petitioner's available GCT credits to correspond to the

shorter sentence Petitioner would be serving in light

of having the downward adjustment factored in, that

decision gave rise to a wholly different determination

which, under Habeas Rule 2(e), had to be raised by

means of a different Petition after being duly

exhausted administratively. Petitioner cannot "import"

the exhaustion of claims underlying his Muniz-I action

into his Muniz-II action. Had it been otherwise, a

federal inmate who exhausted his administrative

14

Case 1:11-cv-04200-RBK Document 10 Filed 09/30/11 Page 14 of 22 PageID: 61
remedies with regard to a single challenge, would then

have a carte blanch to raise any and all later

challenges without administrative exhaustion. Such

rule would make a mockery of the exhaustion requirement

and cannot be allowed.

b. Petitioner's assertion that exhaustion of his newlyminted GCT challenges would be necessarily futile

(simply because the brief executed by the Assistant

United States Attorney ("AUSA") in the opposition to

Petitioner's Motion-I included a string of citations to

cases where the courts came to the conclusion

unfavorable to Petitioner's newly-minted cause) fails

to assert a valid basis to trigger the futility

exception. Indeed, the warden, the counsel

representing the BOP at the Regional level and the

counsel at the Central Office of the BOP may, very

well, elect to follow not the line of cases cited by

the AUSA but the competing line of cases: no statement

made by the AUSA in his brief binds the BOP. The

futility exception is qualitatively different and

narrow. See 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

15

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rights, or if the administrative procedure is clearly

shown to be inadequate to prevent irreparable harm"). 

Here, the Court has no basis to conclude that the BOP

clearly and unambiguously violated a statutory or

constitutional right, or that its administrative

procedure is clearly inadequate to prevent irreparable

harm to Petitioner. Therefore, Petitioner's selfserving assertions that his exhaustion efforts would

necessarily be futile cannot merit reconsideration of

this Court's prior decision.

c. Petitioner's self-serving speculative claims stitched

to the word "unjust" fare even worse. For instance, if

Petitioner believes, baselessly, that the BOP refuses

compliance with any and all judicial decisions, the

rationale of Petitioner's application to this Court is

unclear, since -- according to Petitioner's logic --

the BOP would not comply with this Court's decision

anyway, even if the Court were to find in favor of

Petitioner. Since Petitioner's speculation is as

illogical as it is baseless, it cannot provide this

Court with a valid reason for reconsideration.9

 Petitioner's elaboration on this peculiar point suggests 9

that Petitioner made this odd deducements in light of the BOP's

original denial of his administrative grievances: to that end,

Petitioner maintains that the downward adjustment ordered by his

federal sentencing judge came to fruition (in terms of having his

16

Case 1:11-cv-04200-RBK Document 10 Filed 09/30/11 Page 16 of 22 PageID: 63
d. Petitioner's claim that administrative exhaustion would

be prohibitively expensive because Petitioner would be

required to pay for stamps in the event he elects to

appeal an unfavorable decision of his warden to the

Regional Office and/or appeal the same to the Central

Office, is both speculative and without merit. See 10 11

Payne v. Miner, 2011 U.S. Dist. LEXIS 91418, at *5

(E.D.N.C. Aug. 14, 2011) (where petitioner's mail was

federal sentence recalculated) only when Petitioner's challenges

were brought to the AUSA's attention by this Court's order to

answer. However, Petitioner omits to notice that his own

administrative grievances filed with his warden and the Regional

Office of the BOP raised only Barden challenges, i.e., the claims

having nothing in common with the concept of downward adjustment,

and the issue of downward adjustment was just vaguely "hinted at"

in Petitioner's appeal to the Central Office. Simply put,

Petitioner's downward adjustment claims were raised, in full,

only in the Petition filed in Muniz-I which, in turn, was brought

to the BOP's attention by the AUSA. Therefore, it is hardly

surprising that the BOP did not address those claims in a

speedier fashion. 

 See 28 U.S.C. §2241(c)(3) (the language of § 2241 is set 10

forth in present rather than in future terms, i.e., it reads:

"The writ of habeas corpus shall not extend to a prisoner unless

. . . he is [rather than will be] in custody in violation of the

Constitution or the laws or treaties of the United States")

(emphasis supplied); see also Phifer v. Clark, 115 F.3d 496, 1997

U.S. App. LEXIS 13007 (7th Cir. 1997) (dismissing the petition

where the petitioner's "suggested adverse consequences [are]

speculative. Each depends upon possible discretionary actions

that may or may not affect future . . . decisions").

 "[P]ursuant to BOP Policy Statement No. 5265.5, 11

prisoners [are] permitted to purchase necessary postage from the

[the facility's] commissary. . . . [A]n inmate with insufficient

funds for postage in his commissary account [is] provided with

stamps for legal mail at government expense." O'Rourke v. Smith,

1983 U.S. Dist. LEXIS 13496, at *83 (S.D.N.Y. Sept. 23, 1983). 

17

Case 1:11-cv-04200-RBK Document 10 Filed 09/30/11 Page 17 of 22 PageID: 64
returned for not having enough postage, his claims were

deemed unexhausted, and the insufficient postage did

not qualify as a valid excuse for failure to exhaust)

(relying on Beckford v. Martinez, 408 Fed. App'x 518,

520 (3rd Cir. 2010)); see also Jones v. Daniels, 2010

U.S. Dist. LEXIS 54180 (E.D. Ky. June 2, 2010)

(providing a detailed and thoughtful discussion

upholding the constitutionality of BOP mailing and

postage-collection system). Indeed, had the expense of

mailing operated as a valid excuse from the exhaustion

requirement, the requirement would be wholly vitiated. 

e. Finally, Petitioner's assertion (that he does not

write, read, speak or understand English and, thus,

cannot execute administrative grievances without an

assistant), made a year and a half after commencement

of Muniz-I, provides no support to his Motion-II. Even

if this Court were to presume that Petitioner's

assertion about his absolute lack of comprehension of

English is true (which presumption requires a stretch

of imagination in light of the numerous and lengthy

English-language submissions made by Petitioner in

Muniz-I and Muniz-II), an inmate's problems with

English language do not qualify the inmate for excuse

18

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from the exhaustion requirement. See Bastista v. 12

U.S. Dep't of Justice, 129 Fed. App'x 724 (3d Cir.

2005) (finding that prisoner's inability to speak

English did not constitute cause for excusing his

procedural default); Bonilla v. Hurley, 370 F. 3d 494,

498 (6th Cir. 2004) (prisoner's lack of familiarity

with English language did not establish cause for

procedural default). Indeed, had it been otherwise,

the exhaustion requirement would be constitutionally

infirm, being applied solely to English-speaking

inmates. 

13

 The Court notes its concern with Petitioner's averment 12

that he does not read, speak, write or understands English. As

the record in Petitioner's criminal proceedings indicates,

Petitioner was known as "Sammy Big Boy," which is an English

term, and no entry in his two-year-long criminal proceedings, his

§ 2255 proceedings, etc. indicates Petitioner's resort to an

interpreter or translator. Moreover, the decision entered on

August 26, 2010, by the United States Court of Appeals for the

First Circuit, which dismissed Petitioner's Booker argument,

read, in pertinent part, as follows: "Appellant Samuel

Acevedo-Muniz has filed a pro se supplemental brief and motion

seeking counsel's withdrawal, withdrawal of her Anders brief, and

permission to proceed on the basis of his own supplemental

brief." USA v. Acevedo-Muniz et al., Crim. Action No. 99-0307

(PG) (DPR), Docket Entry No. 349, at 1. Petitioner's aforesaid

appellate proceedings before the First Circuit were instituted in

May, 2009, that is, a year prior to Petitioner's filing of his

Petition in Muniz-I, and his lengthy pro se appellate brief was

filed in April 2010, that is, one month prior to Muniz-I.

 Moreover, such odd construction of the exhaustion 13

requirement would operate as an undue invitation for inmates to

misrepresent their ability to speak, read, write or understand

English in order to avoid the reach of the requirement.

19

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12. Since Petitioner's Motion-II does not provide this Court

with a valid basis to reconsider this Court's prior

determination, Petitioner's newly-minted GCT challenges will

remain dismissed, without prejudice, as unexhausted. No

statement made in this Memorandum Opinion and Order shall be

construed as expressing this Court's position as to

substantive validity or invalidity of Petitioner's newlyminted GCT challenges.14

IT IS, therefore, on this 30th day of September , 2011,

ORDERED that the Clerk shall reopen both Muniz v.

Zickefoose, Civ. Action. No. 10-2444, and Muniz v. Zickefoose,

Civ. Action. No. 11-4200, for the Court's examination of

Petitioner's motion for reconsideration (docketed in Muniz v.

Zickefoose, Civ. Action. No. 10-2444, as Docket Entry No. 18, and

repeated in the same action, again, as Docket Entry No. 20, and

also docketed in Muniz v. Zickefoose, Civ. Action. No. 11-4200,

 The Court takes this opportunity to note Petitioner's 14

misunderstanding of the leeway allowed to pro se submissions. 

Here, Petitioner's Motion-II unambiguously indicates Petitioner's

impression that a pro se submission stating no valid position

must, nonetheless, be so "twisted" by the judiciary as to amount

to a viable claim. Petitioner errs. While it is true that pro

se submissions are not expected to follow the official format and

are construed with a measure of tolerance, it is the litigant's

obligation to state a viable position. Moreover, "[h]abeas

corpus petitions must meet heightened pleading requirements."

McFarland v. Scott, 512 U.S. 849, 856 (1994). Habeas Rule 2(c)

requires a habeas petition to "specify all the grounds for relief

available to the petitioner," "state the facts supporting each

ground" and "state the [correct] relief requested." 28 U.S.C. §

2254 Rule 2(c), applicable to § 2241 petitions through Rule 1(b). 

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as Docket Entry No. 8) by making a new and separate entry on the

docket of each of these matters; both such entries should read,

"CIVIL CASE REOPENED"; and it is further

ORDERED that Petitioner's motion for reconsideration is

granted in form and denied in substance, and this Court's prior

determination as to Petitioner's newly-minted line of challenges

(associated with calculation of his good-conduct-time credits)

shall remain in force, and this newly-minted line of challenges

shall remain dismissed without prejudice, as unexhausted; and it

is further

ORDERED that the Clerk shall docket these Memorandum Opinion

and Order in both Muniz v. Zickefoose, Civ. Action. No. 10-2444,

and Muniz v. Zickefoose, Civ. Action. No. 11-4200; and it is

further 

ORDERED that the Clerk shall close both Muniz v. Zickefoose,

Civ. Action. No. 10-2444, and Muniz v. Zickefoose, Civ. Action.

No. 11-4200, by making a separate entry on the docket of each of

these matters; both such entries should read, "CIVIL CASE

CLOSED"; and it is further

ORDERED that this Court withdraws its jurisdiction over both

Muniz v. Zickefoose, Civ. Action. No. 10-2444, and Muniz v.

Zickefoose, Civ. Action. No. 11-4200; and it is further

ORDERED that the Clerk shall serve this Memorandum Opinion

and Order upon Petitioner by regular U.S. mail and upon

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Case 1:11-cv-04200-RBK Document 10 Filed 09/30/11 Page 21 of 22 PageID: 68
Respondent by means of electronic delivery; and it is finally

ORDERED that the Clerk shall serve a copy of this Memorandum

Opinion and Order upon the Clerk of the Court for the United

States Court of Appeals for the Third Circuit, accompanying such

service with a notation reading, "SERVED IN CONNECTION WITH MUNIZ

V. ZICKEFOOSE, USCA NUMBER 11-3110. SERVICE EXECUTED FOR

INFORMATIONAL PURPOSES ONLY."

s/Robert B. Kugler 

Robert B. Kugler, 

United States District Judge

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