NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CRAIG WATSON, :

: Civil Action No. 11-3751 (RMB)

Petitioner, :

:

v. : OPINION

:

WARDEN D. ZICKEFOOSE, :

:

Respondent. :

APPEARANCES:

Petitioner pro se Counsel for Respondent

Craig Watson Mark Christopher Orlowski

F.C.I. Fort Dix Asst. U.S. Attorney

Fort Dix, NJ 08640 District of New Jersey

Trenton, NJ 08608

BUMB, District Judge

Petitioner Craig Watson, a prisoner currently confined at

the Federal Correctional Institution at Fort Dix, New Jersey, has

submitted a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241,1 challenging the calculation of his sentence. The

1 Section 2241 provides in relevant part:

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

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Respondent is Warden D. Zickefoose.

Because it appears from a review of the relevant record that

Petitioner is not entitled to relief at this time, the Petition

will be dismissed.

I. BACKGROUND

On or about November 12, 1992, Petitioner was arrested by

Philadelphia, Pennsylvania police for alleged possession of a

controlled substance and related charges. Petitioner pleaded

guilty to these state charges and, on May 3, 1993, he was

sentenced to a term of imprisonment of 11 months and 15 days to

23 months.

On November 16, 1992, while the state charges were pending,

Petitioner was taken into temporary federal custody pursuant to a

Writ of Habeas Corpus Ad Prosequendum in connection with

unrelated pending federal criminal charges. On July 26, 1993,

after sentence had been imposed in state court, Petitioner was

sentenced in federal court to an aggregate sentence of 248

months’ imprisonment, to be followed by a three-year term of

supervised release. The federal sentence was silent as to the

state sentence. See United States v. Watson, Criminal No. 92-

0672 (E.D. Pa.). Petitioner was returned to state custody the

same day.

On October 1, 1993, less than eleven months after he was

first taken into state custody, Petitioner was paroled from his

2

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state sentence, but remained in custody for a further period of

52 days. All other time between the date of his arrest in

November 1992 through October 1, 1993, was credited by state

authorities to his state sentence. On November 23, 1993,

Petitioner was released from state custody to the U.S. Marshals

Service to begin serving his federal sentence.

The Bureau of Prisons calculated Petitioner’s sentence as

beginning on November 23, 1993, when he was released to federal

authorities. In addition, the Bureau of Prisons awarded

Petitioner 52 days credit for time in state custody that was not

credited by state authorities to his state sentence, the period

from October 2, 1993, through November 22, 1993.

State authorities had originally advised the Bureau of

Prisons that no time from November 12, 1992 through November 22,

1993, was credited to Petitioner’s state sentence, a period of

approximately 376 days. In reliance on this advice, the BOP

originally awarded Petitioner 376 days of prior custody credit. 

This error was corrected by a 2011 memo which advised the Bureau

of Prisons that Petitioner was credited by state authorities with

all time from his arrest through October 1, 1993, when he was

paroled from his state sentence. Accordingly, the BOP revised

its calculation of Petitioner’s sentence, awarding him prior

custody credit only for the 52 days during which Petitioner

remained in state custody after his parole. Assuming that

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Petitioner receives all good conduct time available to him, his

projected release date is now April 25, 2012.

Petitioner seeks, in this matter, credit for the full 376

days from his arrest by state authorities in November 1992 until

he appeared to begin serving his federal sentence on November 23,

1993.

II. ANALYSIS

Respondent asserts that Petitioner is not entitled to habeas

relief because he did not exhaust his administrative remedies

with respect to his challenge to the calculation of his sentence. 

More specifically, on May 11, 2011, Petitioner submitted an

Informal Resolution Form challenging the “rescission” of the 376-

day prior-custody credit that he had previously been awarded. 

The Warden responded on May 23, 2011, that the Correctional

Systems Management Department had requested Petitioner’s records

from the Philadelphia Records System and that Petitioner would be

informed when the Warden received confirmation on Petitioner’s

sentence computation status. On May 31, 2011, Petitioner filed

Remedy No. 642545-F1 with the Warden, again asserting that he was

entitled to 376 days of prior-custody credit. On June 17, 2011,

the Warden responded similarly that Petitioner’s records had been

requested and that he would be informed as soon as the Warden

received confirmation on the issue. Petitioner did not further

pursue his administrative remedies. This (undated) Petition was

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received by this Court a few days later, on June 30, 2011.

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). The exhaustion

doctrine promotes a number of goals:

(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). Nevertheless,

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 inadequate to

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prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,

*2 (E.D. Pa. 2000) (exhaustion not required where delay would

subject petitioner to “irreparable injury”).

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.”2

 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

2

 “This rule does not require the inmate to file under the

Administrative Remedy Program before filing under statutorilymandated procedures for tort claims (see 28 CFR 543, subpart C),

Inmate Accident Compensation claims(28 CFR 301), and Freedom of

Information Act or Privacy Act requests (28 CFR 513, subpart

D),[ or other statutorily-mandated administrative procedures].” 

67 F.R. 50804-01, 2002 WL 1789480 (August 6, 2002). These

exceptions are not relevant here.

6

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Regional Director signed the response.3 Id. Appeal to the

General Counsel is the final administrative appeal. Id. If

responses are not received by the inmate within the time allotted

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

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

Here, Petitioner abandoned his administrative remedies at

the BP-9 level, when the Warden responded that the relevant

records had been requested. He does not assert that further

administrative appeals would have been “futile,” nor do the facts

suggest that.4

To the contrary, the BOP’s own regulations suggest that, at

the very least, pursuit of the available administrative remedies

would have provided this Court with an appropriate administrative

record for review or, at the most, would have provided Petitioner

some portion of the very relief requested, as explained below.

The Attorney General is responsible for computing federal

sentences for all offenses committed on or after November 1,

1987, United States v. Wilson, 503 U.S. 329 (1992) and 18 U.S.C.

§ 3585, and the Attorney General has delegated that authority to

3

 Response times for each level of review are set forth in

28 C.F.R. § 542.18.

4

 To the extent Petitioner considered that any delay

occasioned by the record request impaired his rights, he could

have treated the Warden’s response as tantamount to no response

and could have appealed. See 28 C.F.R. § 542.18 (“the inmate may

consider the absence of a response to be a denial at that

level”).

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the Director of the Bureau of Prisons, 28 C.F.R. § 0.96 (1992).

Computation of a federal sentence is governed by 18 U.S.C.

§ 3585, and is comprised of a two-step determination of, first,

the date on which the federal sentence commences and, second, the

extent to which credit is awardable for time spent in custody

prior to commencement of the sentence.

(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 defendant was arrested after the

commission of the offense for which the

sentence was imposed;

that has not been credited against another sentence.

18 U.S.C. § 3585(a), (b).

 “Multiple terms of imprisonment imposed at different times

run consecutively unless the Court orders that the terms are to

run concurrently.” 18 U.S.C. § 3584(a). 

The BOP, however, in the exercise of its discretion, has

authority to designate as a place of federal confinement, nunc

pro tunc, the facilities in which a federal prisoner such as

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Petitioner served an earlier state sentence. See Barden v.

Keohane, 921 F.2d 476, 480-83 (3d Cir. 1990) (a defendant is

entitled to “fair treatment” on his application for a nunc pro

tunc designation); 18 U.S.C. § 3621(b).5 The decision of the BOP

is subject to judicial review only for abuse of discretion. 

Barden, 921 F.2d at 478.

Pursuant to BOP Program Statement 5160.05, “State

institutions will be designated for concurrent service of a

federal sentence when it is consistent with the intent of the

federal sentencing court or with the goals of the criminal

justice system.” P.S. 5160.05 ¶ 3(a) (2003). The BOP’s

authority to designate a state institution for concurrent service

of a federal sentence is delegated to Regional Directors. The

Program Statement specifically addresses requests by prisoners

for a nunc pro tunc designation.

(4) Inmate Request. Occasionally, an inmate may

request a nun pro tunc (i.e., occurring now as though

it had occurred in the past) designation. As a result

of the decision in Barden v. Keohane, 921 F.2d 476 (3d

Cir. 1990), the Bureau considers an inmate’s request

for pre-sentence credit toward a federal sentence for

time spent in service of a state sentence as a request

for a nunc pro tunc designation.

5

 Section 3621(b) provides that, “The Bureau of Prisons

shall designate the place of the prisoner’s imprisonment. The

Bureau may designate any available penal or correctional facility

that meets minimum standards of health and habitability

established by the Bureau, whether maintained by the Federal

Government or otherwise and whether within or without the

judicial district in which the person was convicted, that the

Bureau determines to be appropriate and suitable ... .”

9

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(a) In Barden, the court held that the Bureau

must consider an inmate’s request for concurrent

service of the state and federal sentences.

• However, there is no obligation under

Barden for the Bureau to grant the

request by designating a state

institution retroactively as the place

to serve the federal sentence.

(b) This type of request will be considered

regardless of whether the inmate is physically

located in either a federal or state institution. 

Information will be gathered, if available, to

include:

• a copy of the federal and state

J&Cs

• the State sentence data record to

include jail credit, and

• any other pertinent information

relating to the federal and state

sentences.

(c) In making the determination, if a

designation for concurrent service may be

appropriate (e.g., the federal sentence is imposed

first and there is no order or recommendation

regarding the service of the sentence in

relationship to the yet to be imposed state term),

the RISA will send a letter to the sentencing

court (either the chambers of the Judge, U.S.

Attorney’s Office, and/or U.S. Probation Office,

as appropriate) inquiring whether the court has

any objections. Regardless of where the original

inquiry is directed, the U.S. Attorney’s Office

and U.S. Probation Office will receive a courtesy

copy.

(d) If, after 60 days, a response is not

received from the sentencing court, the RISA will

address the issue with the Regional Counsel and a

decision will be made regarding concurrency.

(e) No letter need be written if it is

determinated that a concurrent designation is not

appropriate. ...

P.S. 5160.05, ¶ 9(b) (emphasis added). 

Here, consideration of the BOP regulations that would have

governed resolution of Petitioner’s claim and that provided for

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the Regional Director’s exercise of discretion with respect to

Petitioner’s particular type of claim, compels this Court to

conclude that exhaustion would not have been futile.

In the alternative, this Court finds that the Bureau of

Prisons did correctly determine the commencement date of

Petitioner’s federal sentence and did correctly determine that he

was entitled to 52 days of prior-custody credit for the period

from October 2, 1993, through November 22, 1993. As Petitioner

did not pursue his appeals to the Regional Director level or

permit the creation of an appropriate administrative record, this

Court can make no finding as to whether it would have been an

abuse of discretion to deny Petitioner a discretionary nunc pro

tunc designation of the state institution as a place of serving

his federal sentence from July 26, 1993, when the federal

sentence was imposed, through October 1, 1993, when Petitioner

was paroled from his state sentence.

The Petition will be dismissed without prejudice, for

failure to exhaust administrative remedies.

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III. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed without prejudice. An appropriate order follows.

s/Renée Marie Bumb 

Renée Marie Bumb

United States District Judge

Dated: March 15, 2012 

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