                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-3110
                                     ___________

                            SAMUEL ACEVEDO MUNIZ,
                                            Appellant

                                          v.

                             DONNA ZICKEFOOSE
                     ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civil No. 1-10-cv-02444)
                     District Judge: Honorable Robert B. Kugler
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 1, 2012

              Before: AMBRO, FISHER and NYGAARD, Circuit Judges

                           (Opinion filed: February 3, 2012)


                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Samuel Muniz, a federal prisoner incarcerated at FCI Fort Dix, appeals an order

denying his 28 U.S.C. § 2241 habeas corpus petition. We will affirm.

      Muniz filed his petition in May 2010, accusing the Bureau of Prisons (BOP) of
erring in its calculation of his term of incarceration. However, upon reviewing the

sentence prior to filing its reply, the BOP determined that Muniz was entitled to the

requested adjustment. It therefore revised Muniz’s term of incarceration to provide credit

for the time he had spent in state custody from June 9, 1999, through July 10, 2001,

pursuant to U.S.S.G. § 5G1.3. As Muniz “ha[d] received the relief he seeks and the

Petition no longer present[ed] a live case or controversy,” the Government asked for the

District Court to dismiss the petition as moot, and the District Court obliged.

         Shortly thereafter, Muniz submitted a document entitled “Petitioner’s Informative

Motion and Request for Determination,” in which, inter alia, he further challenged his

revised term of incarceration because “the BOP failed to credit good conduct time from

June 9, 1999.” Determining that this ground should have been raised in a new petition,

the District Court simultaneously opened a new docket 1 and denied the new petition

without prejudice as unexhausted. See Muniz v. Zickefoose, No. 10–2444, 2011 WL

3022439, at *4–5 (D.N.J. July 21, 2011). A timely notice of appeal followed. 2

         We have jurisdiction pursuant to 28 U.S.C. §§ 1291 3 and 2253. Our review of the

District Court’s legal conclusions is plenary. See Rios v. Wiley, 201 F.3d 257, 262 (3d


1
    D.N.J. Civ. No. 1:11-cv-04200.
2
  Muniz also moved to reconsider and reopen after he filed his notice of appeal. The
District Court’s eventual denial of those motions is not before us, as Muniz failed to “file
a notice of appeal, or an amended notice of appeal . . . within the time prescribed by” the
Federal Rules of Appellate Procedure. Fed. R. App. P. 4(a)(4)(B)(ii); United States v.
McGlory, 202 F.3d 664, 668 (3d Cir. 2000).
3
 Muniz elected to stand on his petition, rendering the dismissal without prejudice
appealable. Lucas v. Twp. of Bethel, 319 F.3d 595, 600 (3d Cir. 2003).

                                              2
Cir. 2000). “A challenge to the BOP’s execution of a sentence is properly brought under

28 U.S.C. § 2241.” Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).

       First, we agree with the District Court that Muniz’s post-dismissal filing was

properly construed as a new petition. The claims raised were altogether new—indeed,

they arose from Muniz’s success in achieving relief under his first petition. The District

Court appropriately determined that “what [Muniz] filed as the Motion in this action

should have been filed—after due administrative exhaustion—as a new and separate

§ 2241 petition.” Muniz, 2011 WL 3022439, at *4.

       Federal prisoners are ordinarily required to exhaust available administrative

remedies before seeking relief under § 2241. Moscato v. Fed. Bureau of Prisons, 98 F.3d

757, 760 (3d Cir. 1996); see also Rogers v. United States, 180 F.3d 349, 358 & n.16 (1st

Cir. 1999); Little v. Hopkins, 638 F.2d 953, 953–54 (6th Cir. 1981) (per curiam). In

order to exhaust, petitioners must satisfy the procedural requirements of the

administrative remedy process. 4 Moscato, 98 F.3d at 761–62. Muniz argues that he did

exhaust by lodging the complaints that gave rise to his initial § 2241 petition, but we do

not agree; as the specific sentence-calculation issue, involving good-conduct-time credits,

arose only after the filing of the first petition, the BOP could not have been on notice of

the problem and was therefore unable to apply its expertise to it. See Moscato, 98 F.3d at

761–62 (explaining why exhaustion is required under § 2241). Nor has Muniz shown

that exhaustion would be futile and hence excused. See Gambino v. Morris, 134 F.3d

156, 171 (3d Cir. 1998); see also Fazzini v. N.E. Ohio Corr. Ctr., 473 F.3d 229, 236 (6th



                                              3
Cir. 2006) (“[A] habeas petitioner’s failure to complete the administrative remedy

process may be excused where his failure is due to the administrator, rather than the

petitioner . . . .”). That the Government’s counsel believes the law to require a contrary

outcome does not excuse Muniz from pursuing the administrative remedies the BOP

makes available, and Muniz has not otherwise demonstrated that the “purposes of

exhaustion would not be served here.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235,

239 n.2 (3d Cir. 2005).

         Nor do we detect any error in the District Court’s procedural approach. The

Government properly raised the affirmative defense of exhaustion in opposition to

Muniz’s “motion.” Winck v. England, 327 F.3d 1296, 1304 n.6 (11th Cir. 2003). And

despite being given “thirty days” from dismissal to show exhaustion and reopen

proceedings, see Muniz, 2011 WL 3022439, at *5, Muniz did not timely do so. Cf.

Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990) (“[A] habeas petitioner bears the

burden of proving that he has exhausted available . . . remedies.”).

         In sum, we agree with the District Court’s decision to dismiss the case without

prejudice, and we will affirm its judgment. Should Muniz eventually exhaust the

available administrative remedies—and his submissions to this Court suggest that his

efforts to exhaust may still be ongoing—he may file a new petition at that time in

compliance with all applicable rules.




4
    See 28 C.F.R. §§ 542.13–15; Garza v. Davis, 596 F.3d 1198, 1204 (10th Cir. 2010).

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