MUNIZ v. ZICKEFOOSE

Filing 13

MEMORANDUM OPINION & ORDER: ORDERED that the Clerk shall REOPEN this matter for examination of Petitioner's Motion (DOC #9). ORDERED that Petitioner's 9 Motion is DENIED in the sense that it is construed as a new & separate 2241 petition . The Clerk shall open a NEW matter designated as a 2241 Petition; SAMUEL ACEVEDO MUNIZ as Petitioner & DONNA ZICKEFOOSE as Respondent. ORDERED that Petitioner's IFP is GRANTED. DOC #9 shall be docketed in the new matter as DOC #1- "SECOND PETITION"; this Order shall be docketed in the new matter as DOC #2- "ORDER", etc. The SECOND PETITION is DISMISSED W/OUT PREJUDICE & the new 2241 matter will be ADMINISTRATIVELY TERMINATED, etc. All docs sent to Petitioner by certified mail, RRR. Signed by Judge Robert B. Kugler on 7/21/2011. (drw, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SAMUEL ACEVEDO MUNIZ,
Petitioner,
v.
DONNA ZICKEFOOSE,
Respondent.

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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.
2.

See Docket Entry No. 1-2.

Petitioner's challenge questioned the calculation of his
period of federal confinement;1 he suggested that the
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.

1

Specifically, 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
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.

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.

4.

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

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.

5.

See Docket Entry No. 6.

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.

6.

See Docket Entries Nos. 7 and 8.

On February 9, 2011, Petitioner filed a submission at bar,
which Petitioner titled "Informative Motion & Request for
Determination" ("Motion").

7.

See Docket Entry No. 9.

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.
8.

See id.

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.

9.

See Docket Entry No. 10.

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

See Barber v.
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

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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 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
requirement2 and, in addition, actual prejudice resulting

2

The “cause” standard requires a showing that some
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 majority-

minority 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-conduct-

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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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