MCKNIGHT v. BOP OFFICE THAT MADE A BARDEN DETERMINATION

Filing 2

OPINION. Signed by Judge William H. Walls on 6/25/2014. (ld, )

FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
RICCARDO McKNIGHT,
:
:
Civil Action No. 13-3747 (WHW)
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
OPINION
Respondent.
:
____________________________________:
Walls, Senior District Judge:
This case, commenced as a § 2255 action, has been peppered by Petitioner’s filings
that evinced his, and has caused Respondent’s, confusion. Petitioner’s § 2255 claims will
be denied, and no certificate of appealability will issue. But, as explained later, there are
also three other lines of habeas claims litigated here. No habeas petitioner can challenge
different determinations in a single action. “Habeas Rules do not envision . . . a lump-sum
challenge to the circumstances which a litigant might find [himself] in. Rather, [under]
Habeas Rule 2(e), [P]etitioner is obligated to submit a separate habeas application
challenging each particular determination . . . . [P]etitioner shall select, for the purposes of
each . . . habeas action, [a] particular [administrative or judicial] determination . . . he
wishes to challenge, and then file an individual petition with regard to each specific
challenge.” Alou v. Holder, No. 10-3728, 2010 U.S. Dist. LEXIS 113717, at *2-3 (D.N.J.
Oct. 22, 2010) (citing 28 U.S.C. § 2254 Rule 2(e), applicable to §§ 2241 and 2255 petitions
through Habeas Rule 1(b)) (capitalization removed); see also Muniz v. Zickefoose, No. 102444, 2011 U.S. Dist. LEXIS 115766, at *13 (D.N.J. Sept. 30, 2011) (noting the same as

“axiomatic”), aff’d, 460 F. App’x 165 (3d Cir. 2012). When a litigant raises different
habeas challenges in a single action, the court either dismisses his claims for failure to
comply with Habeas Rule 2(e) or severs each line of challenges into its own habeas case.
See, e.g., Johnson v. Zickefoose, No. 12-2544, 2014 U.S. Dist. LEXIS 2091 (D.N.J. Jan.
8, 2014) (creating four separate habeas actions for each line of claims); Watts v. United
States, No. 11-0912, 2011 U.S. Dist. LEXIS 59082 (D.N.J. May 31, 2011) (creating two
separate habeas actions for each line of claims); accord Frank v. Shartle, No. 13-5285, 2013
U.S. Dist. LEXIS 146605 (D.N.J. Oct. 10, 2013) (dismissing an improperly raised claim
without prejudice to raising it in a new case); Izac v. Norwood, No. 10-5865, 2010 U.S.
Dist. LEXIS 129520 (D.N.J. Dec. 7, 2010) (dismissing an improperly raised claim under
the Rule and on alternative grounds).
Here Petitioner styled all his claims as § 2255 allegations. It was a mistake.
Section 2254 supplies federal jurisdiction over habeas petitions filed by the inmates
challenging their state convictions or sentences, or the execution of those state sentences,
including the issues of parole, term calculation, etc. See 28 U.S.C. § 2254. In contrast, 28
U.S.C. §§ 2241 and 2255 confer jurisdiction over the petitions filed by federal inmates.
Since “[t]he exact interplay between § 2241 and § 2255 is complicated, [and] an explication
of that relationship is unnecessary for resolution of this [case],” Cardona v. Bledsoe, 681
F.3d 533, 535 (3d Cir. 2012) (citing In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997)), it
is enough to state that “[m]otions pursuant to 28 U.S.C. § 2255 are the presumptive means
by which federal prisoners can challenge their convictions or sentences that are allegedly
in violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002). As example, claims attacking plea agreements are raised in § 2255 motions. See,

2

e.g., Hodge v. United States, 554 F.3d 372, 374 (3d Cir. 2009); United States v. Williams,
158 F.3d 736, 737-40 (3d Cir. 1998). On the other hand, § 2241 “confers habeas
jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but
the execution of his sentence,” for instance, by raising claims attacking the Bureau of
Prisons (“BOP”) calculation of his prison term or designation of his place of confinement
if it yields a “quantum of change” in the level of his custody. Woodall v. Fed. Bureau of
Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (quoting Coady v. Vaughn, 251 F.3d 480, 485
(3d Cir. 2001)); compare Ganim v. Fed. Bureau of Prisons, 235 F. App’x 882 (3d Cir.
2007) (a change in the geographical locale of imprisonment cannot yield the requisite
quantum of change).
On April 21, 2008, the Government charged Petitioner with “knowingly and
willfully devis[ing] a scheme . . . to defraud and to obtain money and property by . . . false
pretenses.” United States v. McKnight, Crim. Action No. 08-mj-4039, ECF No. 1 (CCC)
(D.N.J.). On April 29, 2008, he was arrested and, on May 5, 2008, released on bail. See
id., ECF Nos. 3 and 7. A year later, he pled guilty to that charge. See United States v.
McKnight (“McKnight”), Crim. Action No. 09-0242, ECF Nos. 14, 16 and 17 (WHW)
(D.N.J.). His plea included a broadly-termed waiver stating, “[Petitioner] voluntarily
waive[s] the right to file any appeal, any collateral attack, or any other writ or motion,
including but not limited to . . . a motion under 18 U.S.C. § 2255, which challenges the
sentence imposed by the sentencing court. . . .” This Action, ECF No. 8, Ex. 7 (emphasis
supplied).
This Court held Petitioner’s plea and sentencing hearings. See McKnight, Crim.
Action No. 09-0242, ECF Nos. 24 and 29. Since, by that time, Petitioner was already

3

confined at the Warren County Jail after being arrested on one of his many New Jersey
charges, this Court issued a writ of habeas corpus ad prosequendum. See id., ECF No. 20.
Petitioner’s hearings before this Court did not involve any issue connected to his state
charges, past or pending. Rather, his plea colloquy before this Court was:
The Court:
Petitioner:
The Court:
Petitioner:
The Court:

Petitioner:
The Court:
Petitioner:
...
The Court:

Petitioner:
...
The Court:
Petitioner:
The Court:

Petitioner:
...
The Court:

Petitioner:
...
The Court:
Petitioner:
The Court:
Petitioner:

You are here to plead guilty to a charge of wire fraud in
violation of federal law. Do you understand that?
Yes, I do.
You should understand that you are under no obligation to
plead guilty to the charge. . . . Do you follow me so far?
Yes, I do.
Let me back up for a moment . . . and get some personal
history about you. . . . [W]hat type of work have you done
. . . [s]ince you left two years of college?
. . . I worked down on Wall Street for six years.
What did you do?
Stocks and bonds. . . . [I was a] transfer agent.
Now, getting back to what I said . . . . [D]o you realize that
if you plead guilty to this charge, you expose and subject
yourself to being sent to jail by me for [up to] 20 years . . . .
Do you understand that?
Yes.
Knowing that, you still wish to plead guilty to the charge?
Yes.
. . . [Y]our attorneys, on your behalf and with your
knowledge, have worked out [this] plea deal . . . . Is that
correct?
Yes.
[T]he sentence that will be imposed upon you . . . will be the
result of my exercise of discretion. I will be the only one
who decides what you should get by way of sentence. . . . I
will be glad to listen to what you may have to say . . . . Do
you understand that?
Yes.
Has anyone made any promises to you . . . to get you to plead
guilty . . . that you and I have not talked about today?
No.
Have you and I now discussed the plea bargain?
. . . Yes.
4

The Court:
Petitioner:
The Court:
Petitioner:
...
The Court:
Petitioner:
...
The Court:
Petitioner:
The Court:
Petitioner:
The Court:
Petitioner:
The Court:
Petitioner:
The Court:
Petitioner:
The Court:
Petitioner:

Did I leave anything out?
No.
You’re sure?
Yes.
Did you sign the application to enter a plea?
Yes.
Before you signed those papers, did you read them?
Yes.
Did you review them with your attorney?
Yes.
Have you been satisfied with your attorney so far?
Yes.
Are there any questions you want to ask him about the papers
or [about] anything [else at all]?
No, Your Honor.
Anything you want to ask me about?
No, Your Honor.
You’re sure?
Yes.

This Action, ECF No. 8, Ex. 2.
On April 14, 2010, this Court sentenced Petitioner to sixty months of federal
imprisonment. See McKnight, Crim. Action No. 09-0242, ECF No. 25, at 2. With that,
Petitioner’s writ of habeas corpus ad prosequendum expired, and he was returned to the
State of New Jersey, the sovereign that held primary jurisdiction over him as a result of his
Warren County arrest. As of now, Petitioner is still in the state’s jurisdiction serving his
New Jersey terms.

See http://www.bop.gov/Locate (“Riccardo McKnight, Register

Number: 29283-050” is “not in BOP custody”); https://www6.state.nj.us/DOC_Inmate/
results (New Jersey Department of Corrections (“NJDOC”) online record showing that
“Ricky McKnight, SBI No. 667018B,” has been in New Jersey post-conviction custody
since April 8, 2011, and is expected to become parole eligible on June 24, 2014, while his
maximum release date from state custody is September 12, 2014).

5

In fact, Petitioner had three clusters of New Jersey convictions, each of many
offenses. The first one was rendered April 8, 2011, by the Superior Court of New Jersey,
Somerset County (“Somerset County conviction”): based on three charges, each yielding
a five-year term running concurrently with each other; that judgment was accompanied by
the state court’s wishes that those terms would run concurrently with Petitioner’s federal
term imposed by this Court. The second group of convictions was rendered on September
23, 2011, by the Superior Court of New Jersey, Bergen County (“Bergen County
conviction”): based on four charges that resulted in five-year terms running concurrently
with each other and with the sentences imposed in Somerset County. As with the Somerset
County sentences, the Bergen County sentences were also accompanied by the state court’s
wishes that they run concurrently with Petitioner’s federal term imposed. Finally, the third
group of Petitioner’s New Jersey convictions was rendered on November 10, 2011, by the
Superior Court of New Jersey, Warren County (“Warren County conviction”). It, too, was
based on four charges, each yielding a five-year term running concurrently with each other
and the sentences imposed in Somerset and Bergen Counties. As with the sentences in
Somerset and Bergen Counties, the Warren County sentences were accompanied by the
state court’s wishes that they run concurrently with Petitioner’s federal term imposed by
this Court. Accord https://www6.state.nj.us/DOC_Inmate/details?x=1014394&n=0.
Beginning March 21, 2013 (three years after being sentenced by this Court),
Petitioner started filing applications in this District challenging his federal guilty plea, the
sentence imposed by this Court, the BOP’s hypothetical future errors in calculating his
federal term and the NJDOC’s alleged errors in execution of his currently running New
Jersey terms. As example, on March 21, 2013, he filed an application titled “Notice of

6

Motion for Correction of Sentence and Other Relief.” McKnight, Crim. Action No. 090242, ECF No. 26. That application asked this Court to: (a) direct the BOP to grant him
prior custody credit as to his yet-to-be-calculated federal term; and (b) amend his federal
sentence so it would run concurrent with the New Jersey sentences imposed under his
Bergen, Somerset and Warren County convictions. See id. Alternatively, he asked this
Court to direct the BOP to grant him Barden designation: so the facility where he was
serving his New Jersey terms would also be deemed the place where he served his federal
term, since such designation would produce the same outcome as this Court’s directive to
have his federal sentence run concurrent with his state terms. Simply put, Petitioner asked
this Court to take whatever measure possible to ensure that Petitioner would satisfy all his
state and federal obligations by serving a single five-year term. See id. When that
submission was served on the Government in his criminal case, the Government forwarded
it to the BOP for Barden analysis. The BOP contacted this Court, and this Court, upon
carefully reflecting on the record accrued, recommended against Barden designation. The
agency then conducted its own analysis of the statutory factors and, in an exercise of its
discretion, issued a determination denying Petitioner Barden designation.

That

determination was made on May 15, 2013.
In response, Petitioner commenced this Section 2255 action. He re-raised his
administrative challenges against the BOP and NJDOC and, in addition, broadened his
attack on his federal plea and sentence, now maintaining that his counsel provided him
with assistance violating his Sixth Amendment rights because: (a) counsel, allegedly, told
him that all his sentences, state and federal, would run concurrently if this Court sentenced
him first; and (b) counsel did not seek a federal term prospectively concurrent with those

7

eventually imposed a result of Petitioner’s Warren County convictions. See this Action,
ECF Nos. 1 and 3. Being advised of his rights under United States v. Miller, 197 F.3d 644
(3d Cir. 1999), Petitioner responded with a request to have his filings (docketed here as
ECF Nos. 1 and 3) read jointly with his statement attached to his response to the Miller
notice in order to have these three documents construed as his all-inclusive § 2255 motion.
See ECF Nos. 5, 6, 6-2 and 7. These documents, as well as the filings he made later,
verified Petitioner’s intent to litigate four completely different lines of habeas claims: (1)
§ 2255 challenges to his federal plea and sentence; (2) § 2241 challenges to the BOP
decision denying him Barden designation; (3) § 2241 challenges to the BOP’s hypothetical
future errors in calculating his federal term; and (4) § 2254 challenges to the NJDOC’s
alleged denial of prior-custody credits and enrollment into certain programs, as well as the
NJDOC denial of an unspecified measure which Petitioner equated to federal good-conduct
time (“GCT”) credits.1 Each line of these § 2241 and § 2254 claims will be severed into
its own habeas case under Habeas Rule 2(e).

1

An attack on the NJDOC determinations is a § 2254 challenge that cannot be converted into a § 2241 or §
2255 claim by a reference to a federal detainer, as Petitioner tries to do here. See, e.g., Bayard v. Hufford,
No. 11-1421, 2011 U.S. Dist. LEXIS 153245, at *13 (M.D. Pa. Sept. 13, 2011); Ryan v. Dep’t of Homeland
Sec., No. 09-0399, 2010 U.S. Dist. LEXIS 34951, at *2-3 (N.D. Fla. Mar. 8, 2010). Also, Petitioner’s
reference to “state GCT credits” is not entirely clear to this Court since state law has no such provision.
Rather, it imposes minimum and maximum terms of incarceration and allows release on parole in the event
an inmate’s sentences makes him eligible, and the Parole Commission finds him suitable for release. See
http://www.state.nj.us/parole/docs/AdultParoleHandbook.pdf at 25 (since, in New Jersey, “[a] Certificate of
Good Conduct is issued [only] to assist in the rehabilitation of convicted offenders by removing some of the
restrictions upon their ability to obtain proposed employment,” a GCT Certificate is irrelevant to an inmate’s
sentence calculation).
8

I.

BOTH PETITIONER’S § 2241 ATTACKS ARE DEFICIENT
“The authority to calculate a federal prisoner’s release date for the sentence

imposed, and to provide credit for pre-sentence detention and good conduct, is delegated
to the Attorney General, who acts through the [BOP].” Armstrong v. Grondolsky, 341 F.
App’x 828, 830 (3d Cir. 2009) (citing United States v. Wilson, 503 U.S. 329, 334-35
(1992)). “In calculating the sentence, the BOP determines[:] (1) when the federal sentence
commenced, and (2) whether there are any credits to which the prisoner may be entitled.”
Nieves v. Scism, 2013 U.S. App. LEXIS 10989, at *3 (3d Cir. 2013) (citing 18 U.S.C. §
3585). A sentence begins the date when a 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.” 18 U.S.C. § 3585(a); see also
Howard v. Longley, 2013 U.S. App. LEXIS 17905, at *4 (3d Cir. Aug. 27, 2013) (“a
sentence cannot start earlier than the day it was imposed . . . ‘even if made concurrent with
a sentence already being served’”) (quoting United States v. Flores, 616 F.2d 840, 841 (5th
Cir. 1980)). A federal sentence cannot begin to run when a defendant is placed in federal
custody under an ad prosequendum writ, see generally, Ruggiano v. Reish, 307 F.3d 121
(3d Cir. 2002), since primary jurisdiction remains vested in the state because it is the
sovereign that arrested the defendant first. Primary jurisdiction remains with the state until
it relinquishes its priority, which the state can do only by one of four ways: (a) bail release;
(b) dismissal of all charges; (c) parole release; or (d) expiration of sentence. See Rios v.
Wiley, 201 F.3d 257, 274 (3d Cir. 2000), superseded on other grounds, as stated in, United
States v. Saintville, 218 F.3d. 246, 248-49 (3d Cir. 2000); Davis v. Sniezek, 403 F. App’x
738, 740 (3d Cir. 2010) (same, relying on United States v. Cole, 416 F.3d 894, 897 (8th

9

Cir. 2005)); see also Chambers v. Holland, 920 F. Supp. 618, 622 (M.D. Pa.) (“Primary
jurisdiction over a state prisoner ends and federal custody over him commences only when
the state authorities relinquish him on satisfaction or extinguishment of [his] state
obligation[s]”), aff’d, 100 F.3d 946 (3d Cir. 1996); accord Carmona v. Williamson, No.
05-0022, 2006 U.S. Dist. LEXIS 77201 (M.D. Pa. Oct. 23, 2006) (since the state holds
primary jurisdiction over the defendant, the federal officials assume only secondary
jurisdiction over him while he is serving his state sentence).
Once the state’s primary jurisdiction is relinquished, federal jurisdiction
transforms from secondary to primary. See Chambers, 920 F. Supp. at 622. At that point,
the BOP calculates an inmate’s projected release date by factoring in the specifics of his
federal sentence and all appropriate credits. See Armstrong, 341 F. App’x at 830. The key
point of this calculation is the well-settled principle that a federal prisoner cannot receive
a so-called “double credit,” that is, a credit for the time already credited against his state
sentence. See Wilson, 503 U.S. at 337 (in enacting § 3585(b), “Congress made clear that
a defendant could not receive a double credit for his detention time”). That said, a federal
prisoner is entitled to a so-called “prior custody credit” for the time he spent in detention
before his federal sentence began, that is, if that this period has not already been credited
against his other sentence. See 18 U.S.C. § 3585(b) (“prior custody credit” is proper if the
detention resulted either from the offense for which the sentence was imposed or from “any
other charge for which the defendant was arrested after the commission of the offense for
which the sentence was imposed [provided that such period] has not been credited against
any other sentence”); compare Rios, 201 F.3d at 273 n.14 (even under § 3568, that is, the
§ 3585 predecessor which – unlike § 3568 – did not expressly preclude double credit, credit

10

was still unavailable for the time credited against the defendant’s state sentence, regardless
of whether or not that detention came about because the defendant was denied bail in state
forum on the basis of a federal detainer).
In addition, the BOP may take an administrative action creating a credit-like effect.
See, e.g., Barden v. Keohane, 921 F.2d 476, 483 (3d Cir. 1990).
The Barden analysis can be summarized this way:
Under Section 3621(b), the BOP has discretion – i.e., the BOP may but not
must – designate, [either prospectively] or nunc pro tunc, a state facility
where a prisoner [is serving or] served his state sentence as a facility where
the prisoner [is or] was serving his federal sentence. . . . The BOP may
exercise such discretion only if the state court clearly indicated its intention
to have the prisoner’s state sentence run concurrently with the prisoner’s
already imposed federal sentence. Once the BOP determines such clear
intent on behalf of the state court, the BOP: (1) is obligated to exercise its
discretion by considering the prisoner’s application in light of the factors
stated in § 3621(b); but (2) is not obligated to grant the prisoner’s request
if, upon considering the prisoner’s application in light of the factors stated
in § 3621(b), the BOP concludes, in good faith, that such nunc pro tunc
designation is not warranted.
Galloway v. Warden of F.C.I., No. 08-5182, 2009 U.S. Dist. LEXIS 9293, at *10-11
(D.N.J. Feb. 9, 2009) (emphasis supplied), aff’d 385 F. App’x 59 (3d Cir. 2010) (where
the BOP effectively frustrated the express wishes of the state judge who wrote, “It is
difficult to comprehend [why the petitioner’s] sentence, against [my] clear direction,
should not run concurrent with [his f]ederal sentence,” the BOP did not abuse its discretion
in denying Barden designation, because the agency did not abdicate its responsibility to
independently decide the issue. A habeas review does not turn on what is “difficult to
comprehend”; it is “limited to whether the BOP abused its discretion”).
In addition, a prisoner’s federal term can be reduced as a result of a downward
departure granted by his federal court. With regard to that decision, the BOP has no

11

authority but to execute it faithfully. Accord Setser v. United States, 132 S. Ct. 1463, 1470
(2012) (“3621(b) . . . does not confer [upon the BOP] authority to choose between
concurrent and consecutive sentences”). If the federal court directs a prisoner’s federal
term to run in prospective concurrence with his undischarged (either already running or
yet-to-be imposed) state sentence, or if the federal court orders retroactive concurrence to
an already-running state term, the BOP can neither second-guess nor alter that judgment.
See 18 U.S.C. § 3584(a) (federal courts’ power to order prospective concurrence to an
undischarged, already-running state term); accord Setser v. United States, 132 S. Ct. at
1463 (federal courts’ power to order prospective concurrence to a yet-to-be-imposed state
term); Ruggiano, 307 F.3d at 121 (federal courts’ power to order retroactive concurrence
to an undischarged, already-running state term).
If the sentencing federal court did not address the issue of concurrence expressly,
the BOP is obligated to presume an implied consecutiveness, rather than concurrence, of
the federal term. See 18 U.S.C. § 3584(a) (“Multiple terms of imprisonment imposed at
different times run consecutively unless the court orders that the terms are to run
concurrently”) (emphasis supplied).
A.

Petitioner’s Barden Claim Is Meritless

One of Petitioner’s § 2241 challenges focuses on the BOP’s denial of Barden
designation. While Petitioner paraphrased this claim in different ways, see generally,
McKnight, Crim. Action No. 09-0242, ECF No. 26-2; this Action, ECF Nos. 1, 3, 7, 9, 11,
13, his key points are the same. On the one hand, he asserts that the BOP “frustrated” the
intention of this Court and his state judges by denying him Barden designation. On the
other hand, he maintains that the BOP violated his rights by not taking him into federal

12

custody either right upon his federal sentencing or, at the very least, upon his Bergen,
Somerset and Warren County convictions. Respondent read this claim as implicating a
standing-to-sue inquiry and suggest that Petitioner has no standing to litigate a custody
dispute between the state and federal prison authorities. See this Action, ECF No. 8, at 1617. Respondent misreads Petitioner’s position, since he claims that the federal authorities
illegally “created” a scenario allowing them to exercise their discretion and to deny him
Barden designation by “electing” not to take him into federal custody right after his federal
conviction or, at the very least, right upon his state convictions.
Petitioner’s Barden claim is meritless. The BOP correctly presumed that this
Court’s silence as to any concurrence of Petitioner’s federal sentence implied that the
federal sentence was meant to run consecutively. See 18 U.S.C. § 3584(a). And, as this
Court’s response to the BOP’s inquiry verified, the Court’s silence as to concurrence was
not an accidental oversight. Rather, it was a product of this Court’s careful review of the
record. To the extent Petitioner claims that the BOP “frustrated” this Court’s intentions,
his position lacks a factual predicate.
To the extent he asserts that the BOP “frustrated” the intentions of his state judges,
this claim fails to show a violation of his federal rights. As the Court of Appeals explained
in Galloway, 385 F. App’x 59, the Barden analysis examines only: (a) whether the BOP
duly considered the statutory factors; and (b) whether it abused its discretion in conducting
its analysis. The issue of “frustrating” a state judge’s sentencing intentions, or the
emotional “frustration” the state judge or the prisoner might experience, falls outside the
scope of the § 2241 inquiry. See id. State judges have long been put on notice about this
fact:

13

State sentencing judges . . . should be put on notice. Federal prison officials
are under no obligation to, and may well refuse to, follow the
recommendation of state sentencing judges that a prisoner be transported to
a federal facility. . . . [C]oncurrent sentences imposed by state judges are
nothing more than recommendations to federal officials. Those officials
remain free to turn those concurrent sentences into consecutive sentences
by refusing to accept the state prisoner until the completion of the state
sentence and refusing to credit the time the prisoner spent in state custody.
Galarza-Villanueva v. Rios, No. 11-0228, 2012 U.S. Dist. LEXIS 47950, at *17 (E.D. Cal.
Apr. 3, 2012) (quoting Del Guzzi v. United States, 980 F.2d 1269, 1272-73 (9th Cir. 1992)
(Norris, J., concurring), cited with approval in Galloway, 385 F. App’x at 65). It follows
that Petitioner’s claim asserting that the BOP “frustrated” the intentions of his state judges
warrants no habeas relief.
His claim that the BOP illegally “created” a situation allowing the agency to
exercise its Barden discretion is also meritless. Petitioner fails to appreciate the effect of
primary jurisdiction. He was arrested by New Jersey on November 6, 2007, in connection
with the charges underlying his Bergen County conviction. When he was released on bail,
New Jersey divested itself of primary jurisdiction. On December 8, 2007, when he was rearrested in connection with the charges underlying his Somerset County conviction, New
Jersey re-assumed primary jurisdiction and retained it until he was released on bail on those
charges. Then, on April 29, 2008, he was arrested on the charge underlying his federal
sentence. Since he was arrested from the public at large, that arrest vested primary
jurisdiction with the federal government. But the federal government lost its primary
jurisdiction on May 5, 2008, when Petitioner made bail on the federal charge. When he
was re-arrested by New Jersey on November 23, 2009, this time in connection with the
charges underlying his Warren County conviction, primary jurisdiction vested anew with
New Jersey. Since, from that point on, he was neither released on bail nor had all his New
14

Jersey charges dismissed (or parole granted as to all those charges), and his New Jersey
sentences are still running, New Jersey still has primary jurisdiction over him. In other
words, short of the April 29 to May 5, 2008, period, the federal authorities always had only
secondary jurisdiction over Petitioner, and that jurisdictional balance was not affected by
the writ of habeas corpus ad prosequendum issued by this Court. It follows that, when this
Court sentenced Petitioner on April 14, 2010, or when Petitioner’s Somerset, Bergen and
Warren County state sentences were rendered (on April 8, September 23 and November
10, 2011, respectively), Petitioner was in New Jersey’s primary jurisdiction. The BOP had
no mandate to take him into federal custody upon his federal sentencing or upon his
Somerset, Bergen and Warren County convictions. The BOP acted in the only way it could
when it declined to take Petitioner into federal custody.
Had the state courts wished to ensure Petitioner’s placement in federal custody
upon his federal sentencing, they could have achieved that by releasing him on bail on the
charges underlying his Warren County conviction or by dismissing all his state charges
before this Court’s sentencing. The state courts did not do so. Instead, they entered their
judgments in a fashion triggering the scenario under which Petitioner’s federal term would
run consecutively to his state sentences. Petitioner cannot convert his displeasure with the
state judges’ elections into a viable claim against the BOP.
Since the record shows that the BOP duly conducted its independent analysis of the
statutory factors, and the Court, upon a careful review of the agency’s decision, finds no
reason to conclude that it abused its discretion in denying Petitioner Barden designation,
Petitioner’s Barden claim will be dismissed. See Chevron, U.S.A., Inc. v. Nat’l Resources
Def. Council, 467 U.S. 837, 842-43 (1984).

15

B.

Petitioner’s Sentence-Calculation Claim Is Meritless

Petitioner also asserts that he had spent certain periods in New Jersey confinement
during, or in connection with, the pendency of his federal criminal proceeding, and those
periods: (a) neither were credited nor would be credited against his currently running New
Jersey terms; and (b) might also be left not credited against his federal term at the time
when the BOP calculates his release date. See, e.g., McKnight, Crim. Action No. 09-0242,
ECF No. 26-2, at 11. He seeks this Court’s order preemptively directing the BOP to grant
him these credits against his yet-to-be-calculated federal term.
That this Court cannot do. To the extent Petitioner asks this Court to calculate his
term of federal imprisonment, the Court has no jurisdiction. See Armstrong, 341 F. App’x
at 830. To the extent he challenges a hypothetical future error the BOP might make in
calculating his federal term, the claim is unripe. See Toolasprashad v. Grondolsky, 570 F.
Supp. 2d 610, 636 (D.N.J. 2008) (challenges based on hypothetical future developments
are speculative since “the language of § 2241 is set 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’”); see also Peachlum v. City of York, Pennsylvania, 333 F.3d 429, 433
(3d Cir. 2003) (“The function of the ripeness doctrine is to determine whether a party has
brought an action prematurely, and [the] dispute is sufficiently concrete.”) (citations
omitted); Lauderbaugh v. Hopewell Twp., 319 F.3d 568, 575 (3d Cir. 2003) (“The ripeness
doctrine prevents judicial interference until an administrative decision has been formalized
and its effects felt in a concrete way by the challenging parties.”). This claim cannot be
litigated until the BOP makes a calculation and Petitioner, after properly exhausting his

16

challenges at all three levels of the BOP, raises it in a § 2241 petition. But, taking notice
of Petitioner’s prolific litigation in all fora, this Court cannot rule out the possibility that
Petitioner may have already obtained an administrative determination that is sufficiently
concrete. Hence, the Court will dismiss this § 2241 claim with leave to show proper
administrative exhaustion.
II.

PETITIONER’S § 2254 ATTACK IS DEFICIENT
As the Court has already explained, a habeas corpus petition filed under 28 U.S.C.

§ 2254 is the only proper mechanism for a state prisoner to challenge the “fact or duration”
of his state confinement. See Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). It means
that claims challenging state sentence calculation or denial of state credits are to be raised
under § 2254. See Coady, 251 F.3d 480; accord Brian R. Means, Federal Habeas Manual
§ 1:34 (May 2013) (“The vast majority of courts have concluded that, although the texts of
§ 2241 and § 2254 appear similar in their grant of jurisdiction, § 2254 is the exclusive
avenue for a state prisoner challenging the constitutionality of his detention. Section 2254
is properly understood as in effect implementing the general grant of habeas corpus
authority found in § 2241, even if the petitioner is not challenging the underlying state
court conviction (such as challenges to parole determinations), so long as the person is in
custody pursuant to the judgment of a state court.”) (original emphasis removed,
alternative emphasis supplied); see also Felker v. Turpin, 518 U.S. 651, 662 (1996) (“Our
authority to grant habeas relief to state prisoners is limited by § 2254.”). It has long been
established that a state prisoner is required to exhaust all available state remedies before
filing his federal habeas petition, see 28 U.S.C. § 2254(b)(1), and he bears the burden of
demonstrating proper exhaustion. See Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000).

17

Petitioner’s scattered claims (asserting the NJDOC’s denial of prior custody credits,
enrollment into certain programs having term-reducing or quantum-changing effects, and
denial of credits that Petitioner equated to federal GCT credits) appear unexhausted. They
will be dismissed without prejudice to being raised upon Petitioner’s completion of his
state exhaustion process. Since this Court cannot rule out the possibility that Petitioner
might have simply omitted to detail his exhaustion of these claims in state fora, the Court
will dismiss these claims with leave to raise all Petitioner’s duly exhausted claims, if they
resulted from a single NJDOC determination, in his amended pleading filed in the new §
2254 case the Clerk may commence for Petitioner. See 28 U.S.C. § 2254 Rule 2(e).
Also, the Court notes that Petitioner must marshal all his challenges in his amended
petition, and no claim raised in his post-amended-pleading submission will be considered
by this Court unless he first obtains leave from the Court of Appeals to file a
second/successive § 2254 petition. See Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000)
(obligating the courts to notify pro se litigants of the consequences of filing a § 2254
petition). Meanwhile, the Court will deny Petitioner a certificate of appealability (“COA”),
because it may issue “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 123
(2003). “When the district court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.

18

McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of reason would not find it debatable
that Petitioner’s § 2254 challenges, as stated, appear unexhausted.
III.

PETITIONER’S § 2255 ATTACK IS MERITLESS
To correct a defendant’s sentence under Section 2255, the court must find “that . .

. judgment was rendered without jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or that there has been such a denial
or infringement of the constitutional rights of the [defendant] as to render the judgment
vulnerable to collateral attack.” Garcia v. United States, No. 97-2861, 2008 U.S. Dist.
LEXIS 29298, at *4 (D.N.J. Apr. 9, 2008) (internal quotation and citation omitted). The
defendant bears the burden of establishing his entitlement to § 2255 relief, see United States
v. Davies, 394 F.3d 182, 189 (3d Cir. 2005), and, since the defendant’s § 2255 petition is
a collateral attack, he “must clear a significantly higher hurdle than would exist on direct
appeal” to obtain relief. See United States v. Bohn, No. 92-6102, 1999 U.S. Dist. LEXIS
18522, at *7 (E.D. Pa. Nov. 9, 1999) (quoting United States v. Frady, 456 U.S. 152, 166
(1982)).
Also, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposed a one-year period of limitation on the filings of § 2255 motions. See 28 U.S.C. §
2255; Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 619 n.1 (3d Cir.
1998); accord 28 U.S.C. § 2255(f).
Additionally, the defendant convicted as a result of his guilty plea cannot attack
that plea in a § 2255 motion unless his conviction was first challenged on direct appeal.
See United States v. Garth, 188 F.3d 99, 106 (3d Cir. 1999) (“[V]oluntariness and
intelligence of a guilty plea can be attacked on collateral review only if first challenged on

19

direct review.”) (citations omitted); accord North Carolina v. Alford, 400 U.S. 25, 31
(1970); United States v. Broce, 488 U.S. 563, 574 (1989) (a conviction resulting from a
knowing and voluntary plea of guilty by the defendant advised by competent counsel is,
generally, not subject to a collateral attack: if not challenged on direct appeal, it is deemed
procedurally defaulted). A procedurally defaulted § 2255 motion could be reviewed on the
merits only if the defendant shows either: (a) cause and actual prejudice; or (b) actual
innocence. See Bousley v. United States, 523 U.S. 614, 621-22 (1998); see also Garth, 188
F.3d at 106; United States v. Sanders, 165 F.3d 248, 250 (3d Cir. 1999).
In sum, the defendant who pleads guilty waives all pre-plea and plea-unrelated
claims. It means his § 2255 motion must be limited to an attack on his plea and/or the
assistance of his counsel provided in connection with that plea. See Broce, 488 U.S. at
569; Mabry v. Johnson, 467 U.S. 504, 508-09 (1984); Tollett v. Henderson, 411 U.S. 258,
267 (1973) (when a defendant has unconditionally pled guilty, “he may . . . only attack the
voluntary and intelligent character of the guilty plea”); see also Hill v. Lockhart, 474 U.S.
52, 58 (1985). Also, where a defendant executes a waiver, that waiver is binding unless
the defendant states an ineffective-assistance-of-counsel claim that relates specifically to
counsel’s performance in connection with that waiver. Accord United States v. Hahn, 359
F.3d 1315, 1326 n.12 (10th Cir. 2004); see also United States v. Corso, 549 F.3d 921, 931
(3d Cir. 2008).
Even where: (a) a § 2255 motion is timely; (b) there is no procedural default; and
(c) the defendant who plead guilty raises only plea-related claims, his challenges to the
assistance rendered by his counsel merits habeas relief only if he satisfies the two-prong
test of Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under the first prong, he

20

must show that his counsel’s performance fell below an objective standard of
reasonableness, see id. at 688; under the second prong, he must establish prejudice caused
by his counsel’s deficient performance. See id. at 692-93; see also Knowles v. Mirzayance,
556 U.S. 111 (2009). The latter means, generally, that the defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. But where the
defendant attacks his plea on the basis of his counsel’s assistance, the prejudice inquiry
“focuses on whether counsel’s constitutionally ineffective performance affected the
outcome of the plea process.

...

[Hence,] the defendant must show that there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 58-59 (1985) (emphasis supplied);
United States v. Orocio, 645 F.3d 630, 638 (3d Cir. 2011); see also United States v. Lilly,
536 F.3d 190, 196 (3d Cir. 2008) (The court may “consider the prejudice prong before
examining the performance of counsel prong”) (citation omitted).
Important here, when the defendant does not deny his involvement in the crime he
plead guilty to, his “failure to disavow those charges supports a finding that he would have
been convicted had the case gone to trial” and his plea did not cause him prejudice. Cedeno
v. United States, 455 F. App’x 241, 245 (3d Cir. 2011) (citing Premo v. Moore, 131 S. Ct.
733, 745 (2011), for the observation that a defendant’s failure to deny involvement in the
underlying crime “counsels against a finding of prejudice”).
Petitioner’s judgment of conviction, entered on April 12, 2010, became final on
April 26, 2010, since he did not file a direct appeal. See 28 U.S.C. § 2255(f)(1); Fed. R.
App. P. 4(b)(1) (“In a criminal case, a defendant’s notice of appeal must be filed in the

21

district court within 14 days . . . of the entry of either the judgment or the order being
appealed”); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) (where a defendant
does not pursue a timely appeal, his conviction becomes final, and the statute of limitations
begins to run on the date when the time to appeal expired). His AEDPA period of
limitations was triggered the next day and expired one year later, on April 26, 2011. Cf.
Douglas v. Horn, 359 F.3d 257, 261 n.5 (3d Cir. 2004) (explaining how to determine the
first day of the AEDPA period). Petitioner concedes that his one-year post-final-judgment
period expired on that date, that is, April 26, 2011, but still maintains that his § 2255
challenges should be deemed timely since: (a) he, allegedly, mailed a certain letter on
March 5, 2012, “seeking a correction of his sentence”; and (b) that alleged mailing was
made within one year of his Warren County conviction. See this Action, ECF No. 9, at 2.2
Trying to stitch this allegedly mailed letter to his timeliness position, Petitioner now
characterizes his Warren County conviction as “newly discovered evidence” that should
have re-triggered his AEDPA one-year period anew. See id. In the alternative, he seeks
equitable tolling.
“[Petitioner’s] allegations mix apples and oranges, and many other fruits as well.”
In re Ins. Brokerage Antitrust Litig., No. 05-1079, 2007 U.S. Dist. LEXIS 25632, at *121
(D.N.J. Apr. 5, 2007), aff’d in part, remanded in part on other grounds, 579 F.3d 241 (3d
Cir. 2009).

This is so because Petitioner’s timeliness argument turns on the legal

significance of the flaws in his state sentences. The unenforceability of his state judges’

2

There is no dispute that this District never received such a letter from Petitioner. See this Action, ECF No.
9, at 2; see generally, McKnight, Crim. Action No. 09-0242, Docket (reflecting lack of filings during 2012)).
The Court also notes a discrepancy between Petitioner’s November 1, 2011, date of his Warren County
conviction and the November 10, 2011, date of the same conviction reflected on the NJDOC website. But
this nine-day discrepancy is of no import for the purposes of this Court’s analysis here.
22

wishes in federal fora are irrelevant to his § 2255 attack on his federal plea and the resulting
federal sentence since no aspect of his state prosecutions was a part of his federal
proceeding. These flaws in state sentences cannot re-trigger his AEDPA period. Accord
United States v. Nuckols, No. 04-0139, 2009 U.S. Dist. LEXIS 113085, at *7-8 (D. Vt.
Oct. 28, 2009) (citing Shabazz v. Filion, No. 02-0939, 2006 U.S. Dist. LEXIS 73356, at *6
(N.D.N.Y. Sept. 26, 2006), for the observation that “[t]he date of recognition of the legal
significance of facts is irrelevant”). Because Petitioner’s AEDPA period expired on April
26, 2011, that is, many years before he made any post-judgment filing in this District, his
§ 2255 challenges are untimely unless he shows a basis for equitable tolling. Here,
equitable tolling is not warranted.
Being fully apprised of the terms of his federal plea and this Court’s sentence,
Petitioner was returned to state jurisdiction upon expiration of his federal writ of habeas
corpus ad prosequendum. Starting from at least April 7, 2010, the date of his federal
sentence, he knew that the BOP was not taking him into federal custody. He knew it every
day since. He knew it while waiting – two years – for his Somerset County conviction.
He was reminded of the same when he was not taken into federal custody upon that
conviction. He continued knowing it while waiting for his next conviction in Bergen
County. He was re-reminded of the same when he was not taken into federal custody upon
that conviction. He continued knowing it each day while waiting for his next conviction
in Warren County. Not taken into federal custody upon that conviction either, he was rereminded of the same and knew it every day thereafter.
Now, he comes before this Court asserting entitlement to equitable tolling because
he, allegedly, came to fully appreciate the legal significance of the flaws in his state

23

bargains only when the NJDOC formally notified him that the BOP would not take him
into federal custody until all his state terms expire. See this Action, ECF No. 9, at 3.
Petitioner’s laxness cannot be rewarded in equity. “Finding otherwise would make a
mockery of those litigants who did and do go through the very same [legal] process and
yet meet their deadlines or act with utmost diligence and promptness [even] when faced
with [truly] extraordinary circumstances . . . to ensure the availability of substantive federal
habeas review.” Webster v. Ricci, No. 10-5640, 2013 U.S. Dist. LEXIS 88945, at *46
(D.N.J. June 25, 2013) (citing Holland v. Florida, 560 U.S. 631 (2010); Pace v.
DiGuglielmo, 544 U.S. 408 (2005)), certif. denied sub nom., Webster v. Adm’r N.J. State
Prison, 2013 U.S. App. LEXIS 25719 (3d Cir. Oct. 25, 2013).
In addition, the Court also notes that Petitioner’s § 2255 claims are deficient in
many other respects, procedural and substantive.

As example, he has procedurally

defaulted these claims by not raising them on direct appeal, and that procedural default is
undissolved since: (a) he still concedes being guilty of the federal offense to which he pled
guilty; and (b) while attempting to claim “prejudice,” he asserted no “cause” to justify his
default. Even if this Court were to factor out the procedural default aspect, Petitioner’s §
2255 claims would be barred by his waiver. He now claims he would not have executed
the waiver had he been aware of the possibility that the wishes of his state judges might
prove unenforceable in federal fora. But his disappointment with the later-discovered flaws
in his state bargains does not make his federal waiver involuntary or unintelligent. See,
e.g., United States v. Paige, 340 F. App’x 804 (3d Cir. 2009), cert. denied, 558 U.S.
1130 (2010).

24

The Paige defendant challenged the district court order that his federal sentence be
served consecutively to, rather than concurrently with, his state sentence.

Yet, the

defendant voluntarily entered a broadly-termed federal waiver. Although he claimed he
did not intend to waive his right to appeal the issue of whether his sentence would run
consecutively or concurrently, his claim was dismissed under the language of his waiver
that expressly referred to his sentence. See id. at 805 (quoting United States v. Khattak,
273 F.3d 557, 561 (3d Cir. 2001)). Here, as in Paige, Petitioner’s waiver used language
that expressly covered his sentence. It follows that his § 2255 claims are barred by waiver.
Furthermore, Petitioner’s § 2255 claims are substantively meritless. He maintains
that his federal sentence should have been imposed to run in then-prospective-concurrence
with his then-yet-to-be-imposed Warren County sentence because the crimes underlying
his federal and Warren County convictions employed similar modi operandi. To that end,
he relies on a decision from the Eleventh Circuit, United States v. Fuentes, 107 F.3d 1515
(11th Cir. 1997). See this Action, ECF No 1-1, at 10-11. Petitioner errs in his reading of
the phrase modus operandi, as it is used for the purposes of the sentencing analysis, and in
his reliance on Fuentes.3 The defendant in Fuentes was initially convicted in a state forum
on the basis of some aspects of his criminal transaction and later tried in the federal court
on the basis of other aspects of the very same transaction. The Fuentes court concluded
that the federal prosecutor deliberately portrayed the state aspects of the defendant’s
offense as conduct wholly unrelated to the federal aspects in order to manipulate the federal
court into imposing a consecutive sentence. Under those very unique circumstances, the
Fuentes court reflected on the U.S.S.G. § 1B1.3, comment, n.9(A) (entered on November

3

The value of Fuentes, a decision not binding in this Circuit, was further diminished by promulgation of
Guideline Amendment 660, effective November 1, 2003, that affected U.S.S.G. § 5G1.3.
25

1, 1995), and directed concurrence of federal and state sentences noting, in passing, that all
aspects of the defendant’s transaction constituted a “common scheme [being] substantially
connected to each other by at least . . . similar modus operandi.” Fuentes, 107 F.3d at 1525.
The holding of Fuentes was then narrowed by later case law which found Fuentes
inapposite: (a) where, as here, the defendant was sentenced on his state charges after his
federal sentencing, see Brown v. Zych, No. 11-0605, 2012 U.S. Dist. LEXIS 156396, at
*23-24 (W.D. Va. Oct. 31, 2012); and (b) where, as here, no prosecutorial manipulation
was present, see United States v. Patterson, 346 F. App’x 548, 551 (11th Cir. 2009).
Moreover, even the Eleventh Circuit concluded that, where federal and state offenses occur
at different times and constitute different transactions, Fuentes does not apply. See, e.g.,
United States v. Richardson, 2013 U.S. App. LEXIS 18688, at *7-8 (11th Cir. Sept. 9,
2013). This is so because Section 1B1.3 was “designed to take account of a pattern of
misconduct that cannot readily be broken into discrete identifiable units . . . for purposes
of sentencing. [Conversely,] when illegal conduct does exist in ‘discrete, identifiable units’
. . . , the Guidelines anticipate a separate [sentence] for [each] such [unit].” United States
v. Maxwell, 34 F.3d 1006, 1010-11 (11th Cir. 1994) (citations omitted). This underscores
Petitioner’s misreading of Fuentes.

A defendant’s election to employ similar modi

operandi, as this term of art is used to determine whether the prosecutor met his burden of
establishing the defendant’s mens rea, qualitatively differs from how this term is used for
the purposes of the transactional inquiry laying at the heart of the sentencing regime. Had
it been otherwise, a killer committing a murder a year, for decades, would still be entitled
to a single string of automatically-concurrent sentences had he succeeded at showing that
all his murders employed similar modi operandi.

26

The transaction underlying Petitioner’s federal conviction took place long before
the transaction underlying his Warren County conviction: these two transactions were
separated by more than a year and a half, and the gap period included, inter alia, Petitioner’s
federal arrest. Accord United States v. Blanc, 146 F.3d 847, 852 (11th Cir. 1998) (“[i]n
determining whether two or more offenses meet these tests, the sentencing court should
consider . . . the time interval between the offenses”). Each of these two transactions was
a discrete and identifiable unit. His federal sentence was properly selected to run without
any relation to his state terms.
Finally, Petitioner’s attack on his counsel’s performance is also meritless. To
succeed on that challenge, Petitioner must establish prejudice under Hill, 474 U.S. at 5859, by “show[ing] that [(a)] but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial,” and (b) the outcome of that trial “would have been
different.” Strickland, 466 U.S. at 694. Petitioner did not assert that he would have insisted
on proceeding to trial; in fact, he did not even entertain the possibility of going to trial. He
still admits committing the federal offense. This Court presumes that Petitioner would
have been convicted had he been tried. See Cedeno, 455 F. App’x at 245. And this Court
would have sentenced him to the same or an even longer federal term. Because his federal
offense was a discrete and identifiable transactional unit, that federal term might well have
been imposed consecutively. It follows that he has failed to establish prejudice and his
attack on his counsel’s performance is meritless. See Lilly, 536 F.3d at 196.
The Court must now determine whether a COA should issue with regard to
Petitioner’s § 2255 challenges. As explained, this Court may issue a COA only if Petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

27

2253(c)(2). When a habeas petition is denied on procedural grounds, such as untimeliness
or procedural default, the litigant must demonstrate that jurists of reason would find it
debatable: (1) whether the petition states a valid claim of the denial of a constitutional right;
and (2) whether the court was correct in its procedural ruling. See Slack, 529 U.S. at 484.
“Where a plain procedural bar is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude either that the district court erred
in dismissing the petition or that the petitioner should be allowed to proceed further.” Id.
Petitioner’s challenges are untimely and barred both procedurally and by his waiver. The
Court is persuaded that reasonable jurists would not debate the correctness of this
conclusion. In addition, because the Court considered the merits of Petitioner’s claims, the
Court also declines to issue a COA because of Petitioner’s failure to demonstrate that jurists
of reason could disagree with this Court’s substantive findings. See Miller-El, 537
U.S. at 327.
IV.

CONCLUSION
Petitioner’s § 2255 motion will be denied. No certificate of appealability will issue

as to his § 2255 claims. Petitioner’s two lines of § 2241 challenges will be severed into
two new § 2241 habeas cases; one will be dismissed with prejudice, the other will be
dismissed with leave to show proper administrative exhaustion. Petitioner’s § 2254
challenges will also be severed into a new habeas action and dismissed. Although no
certificate of appealability will issue as to these § 2254 challenges, Petitioner will be
allowed an opportunity to show proper exhaustion of these claims in state fora.
An appropriate Order follows.
/s/William H. Walls
United States Senior District Judge
Dated: June 25, 2014
28