Prado v. Christensen

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
JULIO CESAR PRADO,
Petitioner,
v. 	9:23-cv-0341
(GTS/TWD)
D. CHRISTENSEN, Warden,
Respondent.
_______________________________________________
APPEARANCES: 	OF COUNSEL:
JULIO CESAR PRADO
Petitioner, pro se
32653-069
Ray Book Federal Correctional Institution
PO Box 900
Ray Brook, NY 12977
OFFICE OF THE UNITED STATES 	KAREN FOLSTER LESPERANCE, ESQ.
ATTORNEY - ALBANY
Attorney for Respondent
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, NY 12207
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
This matter has been referred for a Report and Recommendation by the Hon. Glenn T.
Suddaby, United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule
72.3(c). Petitioner Julio Cesar Prado (“Petitioner”) seeks federal habeas corpus relief pursuant to
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 1 of 48

2
28 U.S.C. § 2241. Dkt. No. 1. For the reasons set forth below, the undersigned recommends the
petition be denied and dismissed.
II. 	BACKGROUND
Petitioner was sentenced to a forty-five month term of imprisonment by the United States
District Court for the Southern District of New York on April 1, 2021, following entry of a plea
of guilty to one count of Illegal Reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2). Dkt. No.
9-2 at 2-3; see also Dkt. No. 9-1 at 1-2.1 On February 15, 2023, the Department of Homeland
Security issued an Immigration Detainer to the Federal Correctional Institution at Ray Brook,
where Petitioner was housed, identifying him as the subject of a final order of removal. Dkt. No.
9-4 at 2; see also Dkt. No. 9-1 at 2.2 Petitioner filed the instant petition for habeas relief on
March 9, 2023, requesting this Court order the Federal Bureau of Prisons (“BOP”) “to update
and credit [his] computation data monitoring sheet” to reflect credits earned under “the First Step
Act . . . .” Dkt. No. 1 at 7.
III. 	PETITION
Petitioner seeks federal habeas corpus relief due to the BOP’s failure “to credit First Step
Act credits” to his sentence. Dkt. No. 1 at 2. Respondent contends Petitioner is not entitled to
habeas relief because he failed to properly exhaust administrative remedies prior to commencing
1 Citations to the parties’ submissions will refer to the pagination generated by CM/ECF, the
Court’s electronic filing system. Unless otherwise indicated, excerpts from the record are
reproduced exactly as they appear in the original and errors in spelling, punctuation, and
grammar have not been corrected.
2 Yancy Matteau, the Case Management Coordinator at the Federal Correctional Institution at
Ray Brook, affirmed following Petitioner’s filing of the instant petition, “staff at FCI Ray Brook
contacted ICE” and “ICE confirmed a final order of removal exists against Petitioner and ICE
intends to take custody of Petitioner following service of his federal sentence.” Dkt. No 9-1 at 2.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 2 of 48

3
this action and Petitioner is not eligible to receive such credits. See Dkt. No. 9 at 3-7. Petitioner
has not submitted a reply.
IV. 	LEGAL STANDARD
Habeas corpus relief is available where a prisoner is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “A § 2241
petition is generally the appropriate vehicle to raise claims arising from a prison official’s
computation of a prisoner’s sentence.” Clapper v. Langford, 186 F. Supp. 3d 235, 238
(N.D.N.Y. 2016) (citing Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir. 2003)); see also, e.g.,
Lugo v. Hudson, No. 9:13-CV-0753 (GTS), 2014 WL 11350815, at *4 (N.D.N.Y. June 16, 2014)
(explaining the petitioner’s challenge to “the BOP’s calculation of his federal sentence,” was
“properly brought pursuant to section 2241.”), aff’d, 785 F.3d 852 (2d Cir. 2015).
Federal inmates seeking habeas relief pursuant to 28 U.S.C. § 2241 must exhaust their
administrative remedies prior to filing a petition. See Carmona v. U.S. Bureau of Prisons, 243
F.3d 629, 634 (2d Cir. 2001). “This requires compliance with the BOP’s four-step
Administrative Remedy Program.” Lallave v. Martinez, 609 F. Supp. 3d 164, 179 (E.D.N.Y.
2022) (citing 28 C.F.R. § 542.10(a)). To exhaust the BOP’s four-step Administrative Remedy
Program,
The first step of the prescribed process entails making an effort to
obtain an early resolution of the matter by raising the issue
informally to staff . . . . In the event this avenue does not lead to a
successful resolution, the inmate next may submit a formal written
[Administrative Remedy (“AR”)] to the warden of the particular
facility involved, utilizing a designated BP-9 form, within twenty
days of the relevant event . . . . If the AR is denied, an appeal may
be taken to the appropriate BOP Regional Director within twenty
calendar days of the date of denial . . . . As a fourth and final step,
an 	unfavorable 	decision 	from 	the 	Regional 	Director 	may 	be
appealed to the General Counsel’s office (also referred to as the
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 3 of 48

4
“Central Office”) within thirty days of the date on which the
Regional Director rejects the inmate’s appeal.
Barber v. Perdue, No. 9:11-CV-0127 (NAM/DEP), 2012 WL 5996342, at *4 (N.D.N.Y. Nov. 9,
2012) (citations omitted), report and recommendation adopted, 2012 WL 5996866 (N.D.N.Y.
Nov. 30, 2012). “No administrative appeal is fully exhausted until the BOP’s Central Office
reviews it.” Reynolds v. Warden of FCI Raybrook, No. 9:16-CV-1264 (TJMTWD), 2019 WL
8064012, at *3 (N.D.N.Y. Aug. 5, 2019) (citing Spring v. Schult, No. 908-CV-0531 (LEK), 2009
WL 3232183, at *1 (N.D.N.Y. Oct. 1, 2009)), report and recommendation, 2020 WL 918766
(N.D.N.Y. Feb. 26, 2020), aff’d, 850 F. App’x 132 (2d Cir. 2021). “[T]he burden of
demonstrating exhaustion of available remedies rests with the § 2241 petitioner.” Spring, 2009
WL 3232183, at *1 (citation omitted).
“A federal inmate’s failure to exhaust the administrative remedies available to him prior
to commencing a Section 2241 action may ‘only be excused upon a showing of cause and
prejudice.’” Dennis v. Christensen, No. 9:22-CV-0997 (AJB/ML), 2025 WL 1885207, at *2
(N.D.N.Y. Apr. 29, 2025) (citing Carmona, 243 F.3d at 634), report and recommendation
adopted, 2025 WL 1554003 (N.D.N.Y. June 2, 2025). “‘[C]ause’ under the cause and prejudice
test must be something external to the petitioner, something that cannot fairly be attributed to
him” that prevented the petitioner from fully exhausting his administrative remedies. Coleman v.
Thompson, 501 U.S. 722, 753, (1991) (emphasis in original) (citing Murray v. Carrier, 477 U.S.
478, 487 (1986)). “To establish prejudice, a petitioner must show ‘actual harm resulting from
the alleged [interference].’” Dennis, 2025 WL 1885207, at *2 (citing Hinebaugh v. Wiley, 137
F. Supp. 2d 69, 75 (N.D.N.Y. 2001)).
V. 	DISCUSSION
A. Petitioner Failed to Exhaust Administrative Remedies
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 4 of 48

5
As explained above, exhaustion of administrative remedies through the BOP’s four-step
program before filing a petition for habeas corpus relief is required. See generally, Carmona,
243 F.3d at 634. Respondent avers a review of administrative remedy records indicates
Petitioner has not filed a request for an administrative remedy. See Dkt. No. 9-1 at 3; see also
Dkt. No. 9-5. In his petition, Petitioner appears to acknowledge his failure to fully exhaust the
BOP’s administrative remedy program, instead arguing he “could not receive the necessary
forms for remedies.” Dkt. No. 1 at 2.
However, “[a]n unsuccessful request for grievance forms does not, without more, relieve
a prisoner of the exhaustion requirement.” Cheng v. United States, 725 F. Supp. 3d 432, 441
(S.D.N.Y. 2024) (collecting cases), cert. denied before judgment, 145 S. Ct. 1221, 221 L. Ed. 2d
284 (2025), and aff’d, 132 F.4th 655 (2d Cir. 2025); see also, e.g., Cruz v. Rickard, No. 9:23-
CV-407 (GTS/MJK), 2025 WL 2722424, at *2 (N.D.N.Y. July 29, 2025), report and
recommendation adopted sub nom. Cruz v. Richard, 2025 WL 2719863 (N.D.N.Y. Sept. 24,
2025). Therefore, Petitioner’s conclusory allegation that he could not obtain the necessary forms
is insufficient to render the administrative remedy program unavailable to him. See, e.g., Cruz,
2025 WL 2722424, at *2 (rejecting the petitioner’s argument “that his failure to exhaust should
be excused because the Bureau of Prisons denied him access to grievance forms,” explaining, “in
his petition, [petitioner] only claims that he was denied the ability to ‘obtain the necessary forms
to file his administrative remedies’ . . . ; no argument could be made that the administrative
remedies were not available to [petitioner] by virtue of his allegation.”) (additional quotations
and citations omitted); Dennis, 2025 WL 1885207, at *3 (N.D.N.Y. Apr. 29, 2025)
(“[P]etitioner’s unwavering conclusion that exhaustion was impossible because of his inability to
procure BOP forms . . . is unpersuasive . . . . Petitioner’s conclusory allegations without any
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 5 of 48

6
detail or evidence are insufficient to establish cause for his failure to exhaust administrative
remedies.”). Moreover, as Respondent points out, see Dkt. No. 9 at 5, Petitioner’s assertion he
could not obtain administrative remedy forms is belied by records indicating he successfully
submitted a request for an administrative remedy challenging a disciplinary decision. See Dkt.
No. 9-5 at 3.
In sum, Petitioner failed to exhaust his administrative remedies with respect to his First
Step Act credits challenge and has not established cause and prejudice to excuse such failure to
exhaust. Accordingly, the undersigned recommends the petition be denied and dismissed for
failure to exhaust his administrative remedies.
B. Petitioner is Not Entitled to Credits Under the First Step Act
In any event, Petitioner is barred from receiving credits under the First Step Act as a
matter of law. As an initial matter, the First Step Act explicitly states:
A prisoner is ineligible to receive time credits under [the FSA] if the
prisoner is serving a sentence for a conviction under . . . . Section
276(a) of the Immigration and Nationality Act (8 U.S.C. 1326),
relating to the reentry of a removed alien, but only if the alien is
described in paragraph (1) or (2) of subsection (b) of that section.
18 U.S.C. § 3632(d)(4)(D)(lix). As relevant here, Petitioner was convicted of Illegal Reentry in
violation of “8 U.S.C. § 1326(a) and (b)(2).” Dkt. No. 9-2 at 2 (emphasis added). The First Step
Act further provides “[a] prisoner is ineligible to apply time credits . . . if the prisoner is the
subject of a final order of removal under any provision of the immigration laws . . . .” 18 U.S.C.
§ 3632(d)(4)(E)(i). Here, Petitioner is also the subject of a final order of removal. See Dkt. No.
9-4 at 2; Dkt. No. 9-1 at 2.
Accordingly, Petitioner’s conviction under 8 U.S.C. § 1326(b)(2) and final order of
removal preclude him from receiving and applying time credits under the First Step Act.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 6 of 48

7
Therefore, even if Petitioner had properly exhausted his administrative remedies prior to
commencing this action, his petition is meritless and must be dismissed. See, e.g., Cruz, 2025
WL 2722424, at *3 (“The First Step Act bars individuals convicted under 8 U.S.C. §§ 1326(a)
and 1326(b)(1) or (b)(2) from obtaining time credits. The First Step act also bars individuals
with a final order of removal from obtaining time credits. [Petitioner] falls into both categories.
As a result, he is not entitled time credits.”).
VI. 	CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED that the petition, Dkt. No. 1, be DENIED and DISMISSED in its
entirety; and it is further
RECOMMENDED that no Certificate of Appealability (“COA”) shall issue because
reasonable jurists would not find it debatable that Petitioner has failed to offer a substantial
showing that he was denied a constitutional right. See 28 U.S.C. § 2253(c); Slack v. McDaniel,
529 U.S. 473, 483-84 (2000); and it is further
ORDERED that the Clerk shall serve a copy of this Report-Recommendation and Order
on Petitioner, along with copies of unpublished decisions cited herein in accordance with Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk serve a copy of the Report-Recommendation on the parties.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file
written objections to the foregoing report.3 Such objections shall be filed with the Clerk of the
3 If you are proceeding pro se and are served with this Report-Recommendation & Order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Report-Recommendation & Order was mailed to you to serve
and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 7 of 48

8
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)
(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: November 12, 2025
Syracuse, New York
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 8 of 48

Lugo v. Hudson, Not Reported in Fed. Supp. (2014)
2014 WL 11350815
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 11350815
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Daniel LUGO, Petitioner,
v.
D. HUDSON, Respondent.
9:13-CV-0753 (GTS)
|
Signed 06/16/2014
Attorneys and Law Firms
DANIEL LUGO, 67190-053, FCI Ray Brook, P.O. Box 900, Ray Brook, NY 12977, Petitioner, pro se.
OFFICE OF THE UNITED STATES ATTORNEY, P.O. Box 7198, 100 S. Clinton Street, OF COUNSEL: CHARLES E.
ROBERTS, AUSA, Syracuse, New York 13261-7198.
DECISION AND ORDER
GLENN T. SUDDABY, United States District Judge
I. INTRODUCTION
*1 Petitioner Daniel Lugo seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Dkt. No. 1, Petition (“Pet.”); Dkt.
No. 1–1, Memorandum of Law in Support of Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Mem.”). On
October 29, 2002, petitioner was sentenced in the United States District Court for the Eastern District of New York to serve
an aggregate term of ten years in prison and five years supervised release following his conviction for conspiracy to commit
murder in violation of 18 U.S.C. § 1959(a)(5). Pet. at 1; see United States v. Lugo, No. 1:01–CR–0922, Dkt. No. 218, Judgment
in a Criminal Case. Petitioner does not contest his conviction. Rather, he asserts that the Federal Bureau of Prisons (“BOP”)
incorrectly calculated his sentence. See Pet.; Dkt. No. 7, Supplement to Petition (“Supp.”). 1 Respondent opposes the petition.
Dkt. No. 10, Response to Petition for Writ of Habeas Corpus (“Response”); Dkt. No. 10–1, Unpublished Cases; Dkt. No. 10–
2, Declaration of Bryan Erickson (“Erickson Dec.”); Dkt. No. 10–3, Exhibits to Erickson Dec. (“Exhibits”). On November 18,
2013, petitioner filed a reply. Dkt. No. 11, Reply to Response to Petition for Writ of Habeas Corpus (“Reply”). For the reasons
that follow, the petition is denied and dismissed.
1 For the sake of clarity, the cited page numbers for the petition, the supplement and the records attached to each of those
documents refer to the electronically generated numbers at the top right-hand corner of each page.
II. BACKGROUND
The following factual summary is derived from the petition, respondent's answer, and the records provided by both parties. On
February 4, 2000, petitioner was sentenced in New York County to serve an aggregate term of six to twelve years in a New
York State correctional facility for his conviction of criminal possession of a controlled substance and conspiracy charged in
two separate state indictments. Dkt. No. 10–2, Erickson Dec., ¶¶ 5–6; Dkt. No. 10–3, Exhibit B, Sentence and Commitment
Orders, New York County Supreme Court. On March 8, 2000, petitioner began serving his state sentence. He received 98 days
of prior custody credit toward his state sentence December 1, 1999 to March 7, 2000. Dkt. No. 10–2, Erickson Dec. at ¶ 7; Dkt.
No. 10–3, Exhibit A, Sentence Monitoring, Independent Sentence Computation.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 9 of 48

Lugo v. Hudson, Not Reported in Fed. Supp. (2014)
2014 WL 11350815
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
On October 18, 2001, an Assistant United States Attorney applied for a federal writ of habeas corpus ad prosequendum to secure
petitioner's appearance in the Eastern District of New York for arraignment on Indictment Number 1:01–CR–0922, charging
him with conspiracy to commit murder. Dkt. No. 10–2, Erickson Dec. at ¶ 8; Dkt. No. 10–3, Exhibit C, Application for Writ
of Habeas Corpus, Oct. 4, 2001. The writ was issued on October 4, 2001, and it specified that petitioner was to be produced
for arraignment and thereafter maintained “within the jurisdiction of” the issuing federal court “pending the satisfaction of this
writ or the future orders of the Court.” Dkt. No. 10–3, Exhibit C at 1.
*2 On October 29, 2002, petitioner was sentenced in the Eastern District of New York to serve ten years in prison and five years
supervised release upon his conviction for conspiracy to commit murder. Dkt. No. 10–3, Exhibit D, Judgment in a Criminal
Case. The district court ordered the federal sentence to run consecutively to petitioner's New York state sentence. Id. at 2. On
November 14, 2002, the United States Marshals Service in the Eastern District of New York returned petitioner to the custody
of the New York Department of Corrections and Community Supervision (“DOCCS”), and lodged the federal judgment and
commitment order as a detainer. Dkt. No. 10–2, Erickson Dec. at ¶ 10; Dkt. No. 10–3, Exhibit E, Individual Custody and
Detention Report, USM 129, at 2, Status History.
On October 31, 2008, petitioner was released from DOCCS custody into the custody of the United States Marshals Service in
this district to begin serving his federal sentence. Dkt. No. 10–3, Exhibit E, Individual Custody and Detention Report, USM 129.
The BOP calculated petitioner's sentence and determined that it commenced on October 31, 2008, with a projected release date
of September 3, 2017. Dkt. No. 10–2, Erickson Dec. at ¶ 4; Dkt. No. 10–3, Exhibit G, Sentencing Computation Monitoring Data.
On January 7, 2013, petitioner filed an Informal Resolution request at FCI Ray Brook in which he argued that when his federal
sentence was imposed on October 29, 2002, he was ordered committed to the custody of the BOP but instead, the United States
Marshals Service took him to DOCCS. Petitioner argued that, as a result, his federal sentence expired and he was entitled
to release. Dkt. No. 1 at 24, Informal Resolution. On January 14, 2013, his request for relief was denied because the facility
determined petitioner “cannot get credit that was credited to another sentence,” and “[t]ime spent borrowed on a writ from state
custody is not credit.” Dkt. No. 1 at 25, Handwritten Answer.
On January 24, 2013, petitioner filed a Request for Administrative Remedy in which he raised the same arguments. Dkt. No. 1 at
22, Request for Administrative Remedy. In a response dated February 15, 2013, Warden D. Hudson denied petitioner's request.
Dkt. No. 1 at 23, Part B–Response, Feb. 15, 2013. He explained that the BOP was prohibited from commencing petitioner's
federal sentence on October 29, 2002, the date it was imposed, because the district court ordered the sentence to run “consecutive
with the state court sentence” imposed on February 4, 2000. Id. Warden Hudson further explained that on October 18, 2001,
petitioner was temporarily removed from state custody “on a federal writ for [his] current 10 year term of imprisonment,” that
on November 14, 2002, he was returned to state custody and the “federal sentence was lodged as a detainer with N.Y. state
authorities,” and that on October 31, 2008, petitioner was paroled on the state sentence, and his “consecutive federal sentence
commenced” on that date. Id. Warden Hudson also explained that under BOP Program Statement 5880.28:
time spent in custody under a writ of habeas corpus from non-federal custody will not in and of itself
be considered for the purpose of crediting presentence time. The primary reason for 'writ' custody is not
the federal charge. The federal court merely 'borrows' the prisoner under the provisions of the writ for
secondary custody.
Id. (quoting Program Statement 5880.28). Warden Hudson concluded that “[s]ince the period of time [petitioner was] requesting
was credited to another sentence, it cannot be applied” to petitioner's federal sentence. Id. (referencing 18 U.S.C. § 3585(b)
and Program Statement 5880.28).
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 10 of 48

Lugo v. Hudson, Not Reported in Fed. Supp. (2014)
2014 WL 11350815
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
On February 23, 2013, petitioner filed a Regional Administrative Remedy Appeal. Dkt. No. 1 at 20, Regional Administrative
Remedy Appeal. Petitioner argued that the federal district court ordered that he be committed to the custody of the BOP for ten
years to run consecutive with his state sentence, and remanded him to the custody of the United States Marshals Service. Id. He
claimed that because the Marshals Service transported him to DOCCS, they did not obey the federal court's order. Id. According
to petitioner, after he completed his federal sentence, he was then supposed to be returned to DOCCS to continue serving his
state sentence. Id. He argued that his federal sentence was “still running” while he was in DOCCS custody, and had expired. Id.
*3 On March 28, 2013, petitioner's appeal was denied. Dkt. No. 1 at 21, Part B–Response. Regional Director J.L. Norwood
explained that petitioner was in primary state custody when he was produced in federal court “via a federal Writ of Habeas
Corpus ad Prosequendum.” Id. Norwood explained that the federal court ordered his sentence to run consecutively to petitioner's
state sentence; New York had primary custody over petitioner until he completed his state sentence on October 31, 2008;
petitioner's federal sentence began upon his release from state custody; and petitioner's “production for federal prosecution
via a federal writ did not shift primary jurisdiction from the state.” Id. Finally, Norwood explained that the period of time for
which petitioner sought credit against his federal sentence was credited to his state sentence, and could not be awarded twice.
Id. (citing 18 U.S.C. § 3585(b)).
On April 12, 2013, petitioner filed a Central Office Administrative Remedy Appeal. Dkt. No. 1 at 18, Central Office
Administrative. Remedy Appeal. He raised the same arguments he presented in his regional appeal, but also argued that because
the district court did not stay his federal sentence, it began to run when the district court committed him to the custody of the
Marshals Service and had therefore expired. Id. On May 22, 2013, his appeal was denied. Dkt. No. 1 at 19, Administrative
Remedy No. 721266–A1, Part B–Response.
On May 8, 2013, petitioner filed another Informal Resolution request in which he asserted that there was never a writ of habeas
corpus ad prosequendum issued to take him into federal custody on October 18, 2001. He argued that his federal sentence
therefore began to run on October 18, 2001, and was expired. Dkt. No. 1 at 14, Informal Resolution. Petitioner did not receive
a response, and on May 28, 2013, he filed a Request for Administrative Remedy repeating this argument. Dkt. No. 1 at 11,
Request for Administrative Remedy; Dkt. No. 7–1 at 6, Request for Administrative Remedy. He also claimed that he was in
exclusive federal custody from October 18, 2001 to October 29, 2002, and that counting forward from either date, his federal
sentence was satisfied. Dkt. No. 1 at 11; Dkt. No. 7–1 at 6.
On June 18, 2013, petitioner's request for an administrative remedy was denied. Dkt. No. 7–1 at 7, Request for Administrative
Remedy, Part B–Response. Warden D. Hudson explained that the issues raised in petitioner's papers were resolved in previous
administrative remedy filings, and petitioner presented “no new information that would warrant further review.” Id. On June 25,
2013, petitioner filed a Regional Administrative Remedy Appeal. Dkt. No. 7–1 at 8, Regional Administrative Remedy Appeal.
On July 31, 2013, his appeal was denied because petitioner's claims were previously addressed, and his sentence was “computed
correctly [.]” Dkt. No. 7–1 at 10, Part B–Response.
Petitioner filed a Central Office Administrative Remedy Appeal on August 2, 2013. Dkt. No. 7–1 at 11, Central Office
Administrative Remedy Appeal. On August 21, 2013, petitioner's appeal was rejected and returned to him because he failed to
provide a copy of his Regional Administrative Remedy Appeal form or a copy of the response from the Regional Director. Dkt.
No. 7–1 at 16, Rejection Notice—Administrative Remedy. Petitioner was given fifteen (15) days to resubmit his appeal. Id.
On August 20, 2013, petitioner submitted another Central Office Administrative Remedy Appeal. Dkt. No. 7–1 at 12, Central
Office Administrative Remedy Appeal. The outcome of that appeal is unclear.
Respondent does not argue that petitioner's administrative remedies have not been properly exhausted, and the records show
that petitioner raised his claims in several administrative appeals. The court finds that petitioner has exhausted his claims and
will therefore address them on the merits.
III. DISCUSSION
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 11 of 48

Lugo v. Hudson, Not Reported in Fed. Supp. (2014)
2014 WL 11350815
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
A. Petitioner's claims
*4 In his petition, memorandum of law, and reply, petitioner claims that: (1) because the federal district court did not stay his
ten-year sentence, it commenced on the day it was imposed, and the United States Marshals Service violated the commitment
order by returning him to state custody rather than committing him to the custody of the BOP; and (2) there was no valid writ of
habeas corpus ad prosequendum issued, and he was therefore in exclusive federal custody beginning October 18, 2001, when he
was transported to the district court. Pet.; Mem. at 2–11; Reply at 2–4. Petitioner argues that his federal sentence has therefore
expired, and he is entitled to release. Pet.; Mem. at 11.
B. Relevant Statute and Controlling Precedent
Habeas corpus relief is available if a prisoner is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). A section 2241 petition is generally the appropriate vehicle to raise claims arising from a prison
official's computation of a prisoner's sentence. Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir.2003) (explaining that section 2241
is the proper way for a federal inmate to challenge the BOP's calculation of credit to be given for other periods of detention).
Petitioner is challenging the BOP's calculation of his federal sentence, and his claims are properly brought pursuant to section
2241. Petitioner is not, however, entitled to relief.
The United States Attorney General has delegated the authority to calculate federal sentences to the Bureau of Prisons. United
States v. Wilson, 503 U.S. 329, 331–34 (1992); United States v. Labeille–Soto, 163 F.3d 93, 98 (2d Cir.1998). Pursuant to 18
U.S.C. § 3585(a), a federal sentence “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.”
18 U.S.C. § 3585(a); Labeille–Soto, 163 F.3d at 98. If a defendant was in primary federal custody at the time of sentencing,
the federal sentence commences upon imposition. 18 U.S.C. § 3585(a); Dutton v. U.S. Atty. Gen., 713 F.Supp.2d 194, 199
(W.D.N.Y.2010).
When a defendant is borrowed from the primary custody of a state by writ of habeas corpus ad prosequendum, however, the
state retains primary jurisdiction over the prisoner. See United States v. Lockenwitz, 376 Fed.Appx. 147, 150 (2d Cir.2010) (“[A]
defendant held at a federal detention facility is not 'in custody' for the purposes of § 3585(a) when he is produced through a writ
of habeas corpus ad prosequendum.”) (quoting United States v. Fermin, 252 F.3d 102, 108 n. 10 (2d Cir.2001)). The writ simply
“enables a jurisdiction 'to take temporary custody of a prisoner confined within another jurisdiction, and indict, prosecute and
sentence' ” the prisoner. Greenough v. Hufford, No. 1:12–CV–8836, 2013 WL 4534997 at *8 (S.D.N.Y. Aug. 27, 2013) (citation
omitted). When the federal prosecution is complete, “principles of comity require the return of the defendant to the primary
custodian.” Dutton, 713 F.Supp.2d at 201; see also Ortiz v. Lara, No. 1:11–CV–2092, 2013 WL 6083409 at *1 (S.D.N.Y. Nov.
19, 2013) (“Generally, producing a state prisoner under a writ of habeas corpus ad prosequendum to answer federal charges
does not relinquish state custody.”); United States v. Wusebio, No. 1:04–CR–0607, 2007 WL 582745 at *2 (S.D.N.Y. Feb. 21,
2007) (same). Federal custody does not commence until “the state custodian relinquishes the prisoner upon satisfaction of the
prisoner's state obligation.” Dutton, 713 F.Supp.2d at 200–201. A prisoner is “relinquished” by the state when he or she “is
released on bail, the state charges are dismissed, the prisoner is released to parole, or the state sentence expires.” Wusebio, 2007
WL 582745 at *2 (citations omitted).
*5 Pursuant to 18 U.S.C. § 3585(b), federal defendants may receive credit for time spent in official detention before the date
the federal sentence commences if: (1) the detention was the result of the offense for which the federal sentence is ultimately
imposed; or (2) the detention was the result of other charges for which the defendant was arrested after the commission of the
offense for which the sentence was imposed, as long as that time has not been credited against another sentence. 18 U.S.C.
§ 3585(b)(1), (2). Section 3585(b) prohibits defendants from receiving “double credit for [their] detention time.” Wilson, 503
U.S. at 337; Lopez v. Terrell, 654 F.3d 176, 184–85 (2d Cir.2011) (explaining that the BOP is prohibited from crediting time
against a federal sentence that was already credited against a state sentence).
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 12 of 48

Lugo v. Hudson, Not Reported in Fed. Supp. (2014)
2014 WL 11350815
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
C. Application
Petitioner was in the primary custody of New York State by virtue of his arrest by New York state authorities on drug charges in
1999. New York State did not relinquish primary custody over petitioner during any time between December 1, 1999 and October
31, 2008, the date of his release to the custody of the United States Marshals Service upon completion of his state sentence.
Petitioner was merely borrowed from New York State by writ of habeas corpus ad prosequendum, issued on October 4, 2001, in
order to effectuate his appearance in the United States District Court in connection with his arrest and conviction for Indictment
Number 1:01–CR–922. Dkt. No. 10–3, Exhibit C, Application for Writ of Habeas Corpus. Petitioner's federal prosecution did
not terminate New York State's primary custody over him. Lockenwitz, 376 F. App'x at 150; Dutton, 713 F.Supp.2d at 201;
Ortiz, 2013 WL 6083409 at *1; Wusebio, 2007 WL 582745 at *2.
The record contradicts petitioner's arguments that there was no writ of habeas corpus ad prosequendum issued, or that the writ
was invalid. See Pet.; Mem. at 8–10; Reply at 2–4. The writ is captioned “Application for Writ of Habeas Corpus,” but in the
body of the document, the Assistant United States Attorney specified that the application was for the issuance of a writ of
habeas corpus ad prosequendum. See Dkt. No. 10–3, Exhibit C. The writ also directed the United States Marshal to produce
petitioner “on the date, at the time, and in the place recited above, and thereafter to maintain” petitioner “within the jurisdiction
of this Court pending the satisfaction of this writ or the further orders of the Court.” Id. To the extent petitioner argues that
the writ is somehow invalid because it specifies that he was charged by indictment with violating only one criminal statute,
18 U.S.C. § 1959(a)(5), and not the other statutes charged in the indictment, that argument is meritless. The writ was issued in
connection with Indictment Number 1:01–CR–0922, the same indictment upon which he was ultimately convicted. Dkt. No.
10–3, Exhibit C.
Moreover, the district court ordered petitioner's federal sentence to run consecutively to his New York State sentence. Dkt.
No. 10–3, Exhibit D, Judgment in a Criminal Case, at 2 (“The defendant is hereby committed to the custody of the United
States Bureau of Prisons to be imprisoned for a total term of 10 years TO RUN CONSECUTIVE WITH THE STATE COURT
SENTENCE.”) (emphasis in original). Therefore, pursuant to 18 U.S.C. § 3585(a), petitioner's federal sentence could not
commence until October 31, 2008, when he completed his New York sentence and was released to the United States Marshal.
Dutton, 713 F.Supp.2d at 200–201. Petitioner was properly returned to DOCCS upon completion of his federal prosecution.
Dutton, 713 F.Supp.2d at 201.
Finally, the 98–day period from December 1, 1999, through March 7, 2000, was credited to petitioner's New York state sentence.
Dkt. No. 10–2, Erickson Dec. ¶ 7. Pursuant to 18 U.S.C. § 3585(b), petitioner cannot receive credit against his federal sentence
for that 98–day period. He also cannot receive credit toward his federal sentence for the rest of the time he spent serving his
state sentence. That time was credited to his state sentence and cannot be credited twice. 18 U.S.C. § 3585(b); Wilson, 503 U.S.
at 337; Dkt. No. 10–2, Erickson Dec. at ¶ 12.
*6 In sum, the record shows that the BOP properly calculated petitioner's sentence, and his petition is therefore denied and
dismissed.
IV. CONCLUSION
WHEREFORE, it is hereby
ORDERED that the petition for a writ of habeas corpus, Dkt. No. 1, is DENIED AND DISMISSED; and it is further
ORDERED that the Clerk serve copies of this Decision and Order upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 13 of 48

Lugo v. Hudson, Not Reported in Fed. Supp. (2014)
2014 WL 11350815
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
All Citations
Not Reported in Fed. Supp., 2014 WL 11350815
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 14 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996342
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 5996342
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Edward BARBER, Petitioner,
v.
Russell PERDUE, Warden, 1 Respondent.
1 In his petition, Barber named Deborah Schult, who, at the time Barber commenced this action, served as the warden
at the Ray Brook Federal Correctional Institution (“FCI Ray Brook”), as a respondent. Because publically available
information discloses that Russell Perdue became the warden at FCI Ray Brook in February 2011, he is now the
appropriately named respondent, and the clerk of the court is respectfully directed to adjust court records to reflect this
change.
Civil Action No. 9:11–CV–0127 (NAM/DEP).
|
Nov. 9, 2012.
Attorneys and Law Firms
Edward Barber, Atlanta, GA, pro se.
Hon. Richard S. Hartunian, United States Attorney, N.D.N.Y., Charles E. Roberts, Esq., Assistant U.S. Attorney, Syracuse, NY,
for Defendant.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, United States Magistrate Judge.
*1 Pro se petitioner Edward Barber, a federal prison inmate as a result of a drug and money laundering conviction, has
commenced this proceeding pursuant to 28 U.S.C. § 2241, seeking habeas relief from this court. In his petition, Barber challenges
his transfer into FCI Ray Brook, a medium security prison, and seeks to be returned to a Bureau of Prisons (“BOP”) prison
camp similar to that in which he was confined prior to having been found guilty of possessing intoxicants, in violation of prison
disciplinary rules.
In answer to the petition, respondent argues that it is procedurally defective based upon Barber's failure to properly exhaust
available administrative remedies before commencing suit, and in any event fails to state a cognizable constitutional or statutory
claim warranting habeas intervention. For the reasons set forth below, I recommend that Barber's petition be dismissed based
upon his failure to satisfy his obligation to exhaust available administrative remedies before commencing this proceeding, and
in any event, as lacking in merit.
I. BACKGROUND
Petitioner is serving a 120–month term of imprisonment based upon a conviction entered in the District of Maryland for
conspiracy to distribute, and to possess with intent to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. §
846, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). Petition (Dkt. No. 1) at p. 3 and Exh. A;
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 15 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996342
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
Magnusson Decl. (Dkt. No. 4–2) ¶ 5. Petitioner's projected release date, with anticipated good conduct time credits, is August
31, 2015. Magnusson Decl. (Dkt. No. 4–2) ¶ 5.
Petitioner began serving his federal sentence in a minimum security level prison camp operated by the Bureau of Prisons
(“BOP”) in Schuykill, Pennsylvania, on March 20, 2007. 2 Petition (Dkt. No. 1) at p. 6. On July 20, 2007, however, he was
transferred into a low security correctional institution located in Allenwood, Pennsylvania (“LSCI Allenwood”), after being
convicted of possessing intoxicants, in violation of prison rules. Id.; see also Magnusson Decl. (Dkt. No. 4–2) ¶ 7.
2 The BOP has five security classification levels for its correctional facilities, including minimum, low, medium, high, and
administrative. BOP Program Statement 5100.08), Ch. 1 at p. 15. See Johnson v. Killian, No. 07 Civ. 6641(NRB), 2010
WL 3468124 at *1–3 (S.D.N.Y. Aug.23, 2010), vacated and remanded on other grounds by 680 F.3d 234 (2d Cir.2012).
In June of 2010, Barber filed an Administrative Remedy Report (“AR”), pursuant to the BOP's internal inmate grievance
program, challenging his transfer into LSCI Allenwood and requesting that he be returned back into a minimum security
facility. 3 Petition (Dkt. No. 1) at p. 6; Magnusson Decl. (Dkt. No. 4) ¶ 7 and Exh. C. On July 9, 2010, following the denial of
that grievance, which was designated as AR No. 597261, petitioner appealed the matter to the BOP Regional Director. Petition
(Dkt. No. 1) at p. 3 and Exh. E; Magnusson Decl. (Dkt. No. 4–2) ¶¶ 7–8 and Exhs. C, D. In response to that appeal, the Regional
Director advised Barber on August 17, 2010, that his situation was under review and that he was being considered for a transfer
into a minimum security facility. Petition (Dkt. No. 1) at p. 7 and Exh. F; Magnusson Decl. (Dkt. No. 4–2) ¶ 8 and Exh. D.
Barber's appeal was therefore deemed partially granted, and he was advised of his right to appeal the determination to the Office
of General Counsel within thirty days of the date of decision. Id. Petitioner, however, did not seek further review of that decision.
Petition (Dkt. No. 1) at p. 8; Magnusson Decl. (Dkt. No. 4–2) ¶ 9.
3 The BOP's administrative grievance process is more fully described further below in this report. See pp. 10–11, post.
*2 In September 2010, Barber was transferred from LSCI Allenwood into FCI Ray Brook, and was assigned to the facility's
Work Cadre program. Petition (Dkt. No. 1) at p. 8. That program involves inmates designated to FCI Ray Brook who are
assigned to work in various maintenance positions within the institution, including in the areas of groundskeeping, food and
trust fund warehouse operations, UNICOR warehouse operations, the garage motor pool, and participating in general orderly
details of the training center and institution front lobby. 4 Porter Decl. (Dkt. No. 4–3) ¶ 5. Work Cadre unit inmates perform
much of their work outside of the secure perimeter of FCI Ray Brook, and a vast majority of inmates in the program are therefore
assigned “OUT Custody” status, with either a minimum or low security level designation. 5 Id. Under BOP policies, a facility's
security level designation is used
4 Standing alone, the requirement that prison inmates perform work-related functions while incarcerated does not run
afoul of the Thirteenth Amendment's prohibition against involuntary servitude. See Alexander v. Schenk, 118 F.Supp.
298, 302 (N.D.N.Y.2000) (Kahn, J.) (holding that, even if the court was to find that the plaintiff was required to work
without any compensation while incarcerated, his claim would fail because the Thirteenth Amendment “on its face,
excludes ‘involuntary servitude imposed as a legal punishment for a crime’ ”) (quoting U.S. Const. amend. XIII).
5 The BOP defines the “OUT Custody” classification as
[t]he second lowest custody level assigned to an inmate requiring the second lowest level of security and staff
supervision. An inmate who has OUT custody may be assigned to less secure housing and may be eligible for work
details outside the institution's secure perimeter with a minimum of two hour intermittent staff supervision.
BOP Program Statement 5100.08; see Porter Decl. (Dkt. No. 4–3) at p. 2, n. 1.
to describe the structural variables and inmate-to-staff ratio provided at the various types of Bureau institutions (i.e.,
Minimum, Low, Medium, High). It also identifies the institution type required to house inmates based upon their histories,
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 16 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996342
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
institutional adjustment, and Public Safety Factors as well as the physical security of the institution to include mobile patrols,
gun towers, perimeter barriers, housing, detection devices, inmate-to-ratio, and internal security.
Id. at 2 n. 1; see also Johnson, 2010 WL 3468124, at *1–2. 6 Of the thirty-nine inmates assigned to the Work Cadre Unit
at FCI Ray Brook, thirty-six of those, including Barber, are designated as minimum security/OUT custody. Porter Decl.
(Dkt. No. 4–3) ¶¶ 5–6. At FCI Ray Brook, Work Cadre inmates are housed together in a single unit, although they can be
interspersed with general population inmates when taking meals, shopping at the commissary, obtaining health services for
mental health treatment, and in other areas and programs. Petition (Dkt. No. 1) at pp. 7–8.
6 Copies of all unreported decisions cited in this report and recommendation have been appended for the convenience of
the pro se petitioner. [Editor's Note: Attachments of Westlaw case copies deleted for online display.]
Following his arrival at FCI Ray Brook, Barber challenged his transfer by filing an informal resolution, claiming that the transfer
was inconsistent with his minimum security status. Petitioner's Reply (Dkt. No. 6), Exh. J. Because this informal measure did
not resolve the issue, petitioner filed an AR, designated as AR No. 617842. Id., Exh. K; Magnusson Decl. (Dkt. No. 4–2) ¶
10 and Exh. E. Following the denial of that AR by the Warden at FCI Ray Brook, Barber appealed the determination to the
Regional Director on February 14, 2011, reiterating his contentions and arguing that his placement in the FCI Ray Brook Work
Cadre program was inappropriate. Petitioner's Reply (Dkt. No. 6), Exh. L; Magnusson Decl. (Dkt. No. 4–2) ¶ 11 and Exh. F.
That appeal was denied on February 9, 2011, by BOP Regional Director J.L. Norwood, and Barber was advised of his right
to appeal that denial to the BOP General Counsel within thirty days of the date of response. Magnusson Decl. (Dkt. No. 4–
2) ¶ 11 and Exh. F.
*3 Petitioner appealed the matter to the Office of General Counsel on March 2, 2011. Petitioner's Reply (Dkt. No. 6), Exh.
M; Magnusson Decl. (Dkt. No. 4–2) ¶ 12 and Exh. B. By notice dated May 10, 2011, that appeal was denied based upon a
finding that Barber was appropriately designated to his current placement, consistent with the requirements of BOP Program
Statement 5100.08, which is entitled “Inmate Security Designation and Custody Classification.” Petitioner's Suppl. Reply (Dkt.
No. 7) at pp. 2–3 and Exh. A. 7
7 Petitioner's supplemental reply, filed on June 6, 2011, is accompanied by a motion to supplement the record in order to
permit inclusion of the final denial of AR No. 617842. Dkt. No. 7. That motion is granted, and the material accompanying
the motion has been considered by the court.
II. PROCEDURAL HISTORY
Petitioner commenced this proceeding on February 4, 2011. Dkt. No. 1. In his petition, Barber challenges the decision to transfer
him into FCI Ray Brook, claiming that it violated 18 U.S.C. § 3621(b) and BOP Program Statement No. 5100.08, and resulted
in a deprivation of procedural due process and a denial of equal protection. Id. The respondent has since submitted various
documents in opposition to the petition, asserting that petitioner's claims are procedurally barred based upon his failure to
exhaust available administrative remedies before commencing this proceeding, and additionally maintaining that, in any event,
the claims lack merit. 8 Dkt. Nos. 4, 5. Barber has since submitted both a reply and a supplemental reply. Dkt. Nos. 6, 7.
8 In the response to Barber's petition, respondent does not address the statutory arguments raised.
Barber's petition, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and
recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed.R.Civ.P.
72(b).
III. DISCUSSION
A. Exhaustion of Remedies
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 17 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996342
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
In his petition, Barber challenges his designation to FCI Ray Brook on several substantive grounds. In answer to the petition,
respondent argues that Barber's challenge is procedurally barred based upon his failure to exhaust available administrative
remedies.
Barber's petition challenging his prison designation is properly brought pursuant to 28 U.S.C. § 2241. See Jiminian v. Nash, 245
F.3d 144, 146 (2d Cir.2001) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence,
including such matters as ... prison transfers, [and] type of detention[.]”) (citing Chambers v. United States, 106 F.3d 472, 474–
75 (2d Cir.1997)); see also Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001) (“A writ of habeas corpus
under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its
execution subsequent to his conviction.”). Before instituting such a habeas proceeding, however, a prison inmate must first
exhaust the remedies available through the BOP's Administrative Remedies Program. Carmona, 243 F.3d at 630 (“We have
held that federal prisoners must exhaust their administrative remedies prior to filing a petition for habeas relief.” (citing Guida
v. Nelson, 603 F.2d 261, 262 (2d Cir.1979)); see also Rogers v. United States, 180 F.3d 349, 357 (1st Cir.1999).
*4 Available to all federal prison inmates is an internal, four-step administrative grievance procedure adopted by the BOP for
the stated purpose of “allow[ing] an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.”
28 C.F.R. § 542.10(a); see also Macias v. Zenk, 495 F.3d 37, 42 (2d Cir.2007). The first step of the prescribed process entails
making an effort to obtain an early resolution of the matter by raising the issue informally to staff. 28 C.F.R. § 542.13(a); see
also Johnson v. Testman, 380 F.3d 691, 693 (2d Cir.2004). In the event this avenue does not lead to a successful resolution, the
inmate next may submit a formal written AR to the warden of the particular facility involved, utilizing a designated BP–9 form,
within twenty days of the relevant event. 28 C.F.R. § 542.14(a). If the AR is denied, an appeal may be taken to the appropriate
BOP Regional Director within twenty calendar days of the date of denial. 28 C.F.R. § 542.15(a); see also Johnson, 380 F.3d at
693. As a fourth and final step, an unfavorable decision from the Regional Director may be appealed to the General Counsel's
office (also referred to as the “Central Office”) within thirty days of the date on which the Regional Director rejects the inmate's
appeal. 28 C.F.R. § 542.15(a). Only upon completion of all of the required steps in the process does a federal inmate fully
exhaust available administrative remedies. Macias, 495 F.3d at 42; see also Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir.2009);
Strong v. Lapin, No. 90–CV–3522, 2010 WL 276206, at *4 (E.D.N.Y.2010) (“Until the BOP's Central Office considers the
appeal, no administrative remedy is considered to be fully exhausted.”).
Two separate ARs filed by Barber are implicated in this proceeding. As was previously discussed, the first, AR No. 597261, was
filed while Barber was confined in LSCI Allenwood, and challenged his transfer into that facility. Magnusson Decl. (Dkt. No.
4–2) ¶ 7 and Exh. C. The remedy sought in that AR, inter alia, included a request that he be transferred into another BOP facility,
commensurate with his security level designation. See id., Exh. C. That AR was successful in large part, in that at the Regional
Director level Barber was advised that he was, in fact, being considered for a transfer to a minimum security facility. Id., Exh. D.
Plaintiff's subsequent transfer into FCI Ray Brook generated a second grievance, AR No. 617842, challenging that transfer
and his placement into the facility's Work Cadre program. Magnusson Decl. (Dkt. No. 4–2) ¶ 11 and Exh. F. That grievance
represents petitioner's attempt to exhaust remedies with regard to the claims now raised in this action. As discussed above,
this grievance was ultimately denied by the Central Office on May 10, 2011. Petitioner's Suppl. Reply (Dkt. No. 7), Exh. A.
Because petitioner filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this court on February 4, 2011
—more than two months prior to receiving the Central Office's final determination of his appeal—the court is confronted with
whether, as respondent contends, a petitioner who has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
has failed to exhaust administrative remedies where he receives the Central Office's final decision regarding his appeal after
filing his petition in federal court.
*5 Initially, the court notes that the exhaustion requirements imposed under 42 U.S.C. § 1997e(a), a provision added as part
of the Prison Litigation Reform Act (“PLRA”), do not apply to petitions for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. See Carmona, 243 F.3d at 634 (“[W]e note that although § 1997e(a) of the [PLRA] ... contains a statutory administrative
exhaustion requirement, we have held, in the context of a § 2254 petition, that the requirements of the [PLRA] do not apply to
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 18 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996342
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
habeas proceedings .... Doubtless the same rule should obtain in § 2241 cases as in § 2254 petitions.”). 9 Instead, the exhaustion
requirements applicable to 28 U.S.C. § 2241 petitions were created by case law. See, e.g., Garza v. Davis, 596 F.3d 1198,
1203 (10th Cir.2010) (“The exhaustion of available administrative remedies is a prerequisite for § 2241 habeas relief, although
we recognize that the statute itself does not expressly contain such a requirement.”); Marti v. Nash, 227 F. App'x 148, 150
(3d Cir.2007) ( “Although there is no statutory exhaustion requirement attached to § 2241, we have consistently applied an
exhaustion requirement to claims brought under § 2241.”) (internal quotation marks omitted).
9 See also Walker v. O'Brien, 216 F.3d 626, 634 (7th Cir.2000) (“[W]e conclude that cases properly brought under §§
2241 or 2254 as habeas corpus petitions are not subject to the PLRA.”); Blair–Bey v. Quick, 151 F.3d 1036, 1040
(D.C.Cir.1998) (“[W]e see no reason to make an exception from our general rule that the PLRA does not apply to actions
properly brought in habeas corpus.”); Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir.1998) (“The PLRA ... does not apply to
section 2241 proceedings.”); McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811–12 (10th Cir.1997) (holding
that the PLRA does not apply to habeas petitions filed pursuant to 28 U.S.C. § 2241); Colton v. Ashcroft, 299 F.Supp.2d
681, 687 (E.D.Ky.2004) (extending the Sixth Circuit's finding that the PLRA does not apply to 28 U.S.C. §§ 2254 and
2255 proceedings by concluding that the PLRA does also does not apply to 28 U.S.C § 2241).
The Second Circuit has held that a petitioner may pursue a request for habeas corpus relief, including pursuant to 28 U.S.C.
§ 2241, even where he has failed to exhaust administrative remedies prior to filing the action in district court, only upon a
showing of cause and prejudice. Carmona, 243 F.3d at 634 (“[T]he interests of judicial economy and accuracy are served by
requiring that, absent a showing of cause and prejudice, appeals proceed in the first instance through the federal agency review
process.”). The Second Circuit explained the reasoning behind this requirement in the following manner:
Following the administrative procedures could potentially obviate the need for judicial review, or at
a minimum, develop the factual record at the agency level at a time when the disputed events are
still relatively fresh in witness' minds.... Administrative autonomy is also served by requiring that a
federal prisoner justify his failure to exhaust his intra-Bureau remedies. When, however, legitimate
circumstances beyond the prisoner's control preclude him from fully pursuing his administrative
remedies, the standard we adopt excuses this failure to exhaust.
Id.
In light of the fact that neither the Second Circuit nor any court in this district has explicitly ruled on the circumstances the court
faces in this case, I recommend a finding that a petitioner who receives a final administrative determination of his grievance
during the pendency of a related habeas petition in federal court has not exhausted his administrative remedies, unless he
demonstrates cause and prejudice for prematurely filing his petition in federal court. This recommendation is in line with the
Supreme Court's decision in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). In that case, the Supreme
Court held that a district court may stay a mixed petition, where some of petitioner's claims were unexhausted in state court,
only when it “determines there was good cause for the petitioner's failure to exhaust his claims first in state court.” Rhines, 544
U.S. at 277, 125 S.Ct. at 1535. In addition, this recommended finding aligns with the Second Circuit's requirement that a district
court excuse a petitioner's failure to exhaust only upon a showing of cause and prejudice. Carmona, 243 F.3d at 634. Finally,
although one district court has held that the Supreme Court's decision in Rhines “at least implicitly [suggests] that subsequently
exhausting available remedies cures an initial lack of exhaustion in the habeas context[,]” Mihailovich v. Berkebile, 06–CV–
1603, 2007 WL 942091, at *6 (N.D.Tex. Mar.28, 2007), I read Rhines to neither demand a district court to stay a petition under
any circumstances, nor preclude dismissing a petition for failure to exhaust. See e.g., Seastrong v. Berkebile, 08–CV–1853–M,
2008 WL 4999017, at *3 n. 2 (N.D.Tex. Nov.24, 2008) (“While these [Supreme Court] cases implicitly indicate that exhausting
available remedies after filing a habeas action may cure an initial lack of exhaustion, they do not preclude dismissal of [an]
action even if [a] petitioner has subsequently exhausted his administrative remedies.”) (internal citation omitted).
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 19 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996342
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
*6 Here, petitioner's papers demonstrate neither that he had good cause for filing his habeas petition in federal court prior to
receiving the Central Office's final determination, nor, even assuming cause existed, prejudice. Rather, in his reply, petitioner
admits that he “has yet to receive the Central Office response[.]” Petitioner's Reply (Dkt. No. 6) at p. 3. Accordingly, I
recommend that Barber's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be denied, without prejudice, for
failing to exhaust his available administrative remedies.
B. Merits of Petitioner's Claims
In his petition, Barber argues that in transferring him into FCI Ray Brook, the BOP failed to adhere to statutory and regulatory
requirements, and further that the agency violated his rights by depriving him of a vested liberty interest without procedural
due process. He additionally claims that prison officials deprived him of equal protection as a result of his transfer into FCI
Ray Brook. In answer to these claims, respondent asserts that Barber has no protected liberty interest in being confined to any
particular BOP facility, and therefore cannot state a cognizable due process claim. Respondent also maintains that his equal
protection and statutory claims are similarly deficient as a matter of law.
1. Due Process
To successfully state a claim under 42 U.S.C. § 1983 for the denial of procedural due process, a party must show that he or
she (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. See
Tellier v. Fields, 280 F.3d 69, 79–80 (2d Cir.2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir.1998); Bedoya v. Coughlin,
91 F.3d 349, 351–52 (2d Cir.1996). In this instance, the facts set forth in Barber's petition fail to establish the deprivation of
a constitutionally significant liberty interest.
By law, the BOP is vested with wide ranging discretion to designate a facility in which a federal prison inmate is to be held.
18 U.S.C. § 3621(b); see also Levine v. Apker, 455 F.3d 71, 80–81 (2d Cir.2006); Barden v. Koehane, 921 F.2d 476, 482 (3d
Cir.1990). Addressing the question of placement of a federal inmate, the governing statute provides, in relevant part, as follows:
The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate
any available penal or correctional facility ..., whether within or without the judicial district in which the
person was convicted.... The Bureau may at any time ..., direct the transfer of a prisoner from one penal
or correctional facility to another.
18 U.S.C. § 3621(b).
It is well-established that an inmate has no protectable liberty interest in being designated to a particular facility, even if the
facility into which a prisoner is transferred is undesirable to the prisoner. Olim v. Wakinekona, 461 U.S. 238, 245–46, 103 S.Ct.
1741, 1745–46, 75 L.Ed.2d 813 (1983) (holding that a prisoner has no constitutional right to be incarcerated in any particular
state); Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (“The Constitution does not ...
guarantee that the convicted prisoner will be placed in any particular prison.”). The United States Supreme Court has long held
that, “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon
him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by
prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976).
“If a the prisoner can lawfully be held in the facility into which he has been transferred, he cannot object to that transfer, even
if the transfer results in his being placed in a more restrictive or less [desirable] facility.” Ali v. Gibson, 631 F.2d 1126, 1135 (3d
Cir.1980), accord, Hookey v. Lomas, No. 1:CV–08–022884, 2010 WL 1009946, at *6 (M.D.Pa. March 11, 2010).
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 20 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996342
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 7
*7 Since Barber cannot establish that his transfer into FCI Ray Brook implicated a protecable liberty interest under the
Fourteenth Amendment, his procedural due process claim is subject to dismissal as a matter of law. See Meachum, 427 U.S. at
225, 96 S.Ct. at 2538 (“That life in one prison is much more disagreeable than in another does not in itself signify that Fourteenth
Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.”).
2. Equal Protection
In his petition, Barber also contends that his transfer into FCI Ray Brook resulted in the denial of equal protection, alleging
that, as a result of his transfer, he has been treated by the BOP differently than other similarly situated inmates, including those
in other BOP facilities. Respondent also urges dismissal of Barber's equal protection claim on the merits.
The Equal Protection Clause directs state actors to treat similarly situated people alike. See City of Cleburne, Texas v. Cleburne
Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). To prove a violation of the Equal Protection
Clause, the petitioner must demonstrate that he was treated differently than others similarly situated, as a result of intentional or
purposeful discrimination directed at an identifiable or suspect class. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.1995)
(citing, inter alia, McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987)). The petitioner must
also show that the disparity in treatment “cannot survive the appropriate level of scrutiny which, in the prison setting, means
that he must demonstrate that his treatment was not ‘reasonably related to legitimate penological interests.’ ” Phillips v. Girdich,
408 F.3d 124, 129 (2d Cir.2005) (quoting Shaw v. Murphy, 532 U.S. 223, 225, 121 S.Ct. 1475, 1478, 149 L.Ed.2d 420 (2001)
(alterations omitted)).
Petitioner's equal protection claim is based upon a class-of-one paradigm. Barber does not allege that he is a member of a
group that received disparate treatment in comparison to other similarly situated inmates. Rather, he argues that he has been
singled out for differential treatment from other similarly situated inmates, citing as one example an inmate who was transferred
from a satellite camp to LCSI Allenwood for possessing intoxicants, and then later returned back to a minimum security level
institution. He also argues that, while he is similarly situated to other inmates throughout the BOP with minimum security levels,
unlike him, they are not being forced to participate in a Work Cadre program at a higher level security institution.
A class-of-one equal protection claim is stated “where the plaintiff alleges that she has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528
U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). In this circuit, to succeed on such a claim, a party must establish that
*8 (i) no rational person could regard the circumstances of the plaintiff to differ from those of a
comparator to a degree that would justify the differential treatment on the basis of a legitimate government
policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the
possibility that the defendant acted on the basis of a mistake.
Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir.2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d
Cir.2008); see also Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir.2010).
The Second Circuit has noted that application of a class-of-one equal protection standard will differ depending upon whether
the case involves discretionary decisionmaking, or instead flows from non-discretionary action. Analytical Diagnostic Labs,
Inc., 626 F.3d at 141. As the Supreme Court has observed, a class-of-one equal protection claim is readily available when
governmental action can be gauged by a clear standard. Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 602, 128 S.Ct.
2146, 170 L.Ed.2d 975 (2008). In the case of discretionary decisionmaking, the test to be applied is significantly more relaxed,
particularly in instances such as in the employment arena, for example, where decisions are often subjective and highly
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 21 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996342
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 8
individualized. Analytical Diagnostic Labs, Inc., 626 F.3d at 141 (citing Engquist, 553 U.S. at 604, 128 S.Ct. 2146, 170 L.Ed.2d
975 (2008)).
In this instance, there is no objective standard at issue. Instead, this case falls in the discretionary category. Under Program
Statement 5100.08, the BOP is invested with considerable latitude concerning assignment of inmates, subject only to the
statutory requirement that certain factors be taken into consideration when making that significantly subjective determination.
Exercising that discretion, BOP decision-makers placed Barber in a minimum security Work Cadre program, fully consistent
with his security level, and assigned him a minimum security/OUT designation permitting him to work in and around the
prison where higher level security inmates are not allowed in light of security concerns. Porter Decl. (Dkt. No. 4–3) ¶¶ 5 and
6; Magnusson Decl. (Dkt. No. 4–2) Exh. E at p. 34–38; Petitioner's Suppl. Reply (Dkt. No. 7), Exh. A. His designation to FCI
Ray Brook, a medium-security prison, was apparently prompted by the BOP's practice of attempting to designate an inmate to
a facility located within five hundred miles of his or her release residence. 10 Petitioner's Suppl. Reply (Dkt. No. 7) Exh. A.
10 The controlling provision of Program Statement 5100.08 provides as follows:
The Bureau of Prisons attempts to place each inmate in an institution that is reasonably close to the anticipated
release area. Ordinarily, placement within 500 miles of a release area is to be considered reasonable, regardless
of whether there may be an institution closer to the inmate's release area. This MGTV may also apply to inmates
who are within 36 months of release.
BOP Program Statement P5100.08, ch. 5, at p. 3.
This matter is materially distinguishable from such cases as Village of Willowbrook, which involved a property owner's request
for permission to connect to a municipal water supply where she was required to grant a thirty-three foot easement for that
purpose whereas other property owners were required to provide only fifteen foot easements. 528 U.S. at 565, 120 S.Ct. at
1075. The Supreme Court concluded that plaintiff's allegations sufficed to state a class-of-one equal protection claim since the
difference in treatment alleged gave the appearance of being irrational and wholly arbitrary. Id.
*9 Applying these principles to the instant case, there is nothing in the record now before the court to suggest that Barber
was intentionally treated differently from other similarly situated inmates for no rational reason or that discriminatory animus
motivated his assignment to FCI Ray Brook. Accordingly, I recommend denial of his equal protection habeas claim.
3. Statutory Violation
Section 3621(b), which governs the assignment of prisoners, as well as transfers within the federal penal system, confers broad
discretion upon the BOP in that regard. 18 U.S.C. § 3621(b) (“The [BOP] may at any time ... direct a transfer of a prisoner from
one penal or correctional facility to another.”); see also Levine v. Apker, 455 F.3d 71, 80 (2d Cir.2006) (citing cases). While
conferring extensive discretion, the statute goes on to list a series of factors to be considered in making that determination,
including
(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the
history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence ...;
and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)
(2) of title 28.
18 U.S.C. § 3621(b); see also Levine, 455 F.3d at 81.
In this instance, there does not appear to be any dispute involving Barber's security level. Consistent with BOP Program
Statement 5100.08, he has been designated as a minimum security level, resulting in a possible custody level of “Community”
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 22 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996342
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 9
and “OUT.” In this instance, Barber is designated as having “OUT” custody status. Designation of the petitioner to FCI Ray
Brook, with a minimal security level and OUT custody designation, appears to be fully consistent with both the requirements
of section 3621 and BOP program statement 5100.08. I therefore recommend a finding that no statutory violation has been
established with regard to petitioner's classification or designation to FCI Ray Brook.
IV. SUMMARY AND RECOMMENDATION
By statute, the BOP is invested with considerable discretion in assigning federal inmates to BOP facilities, subject to
consideration of various relevant factors which must inform that determination. In carrying out its responsibilities for designating
inmates to federal facilities the BOP, with its expertise, is undeniably faced with many constraints and challenges. For this
reason, courts typically afford considerable deference to decisions made by that agency. It is neither appropriate nor desirable
for a court to micromanage that decisionmaking process and serve as an appellate body for disgruntled inmates to challenge their
facility designations, unless it can be shown that the decision made in a particular case has run afoul of the protections afforded
by statute or the United States Constitution. See Meachum, 427 U.S. at 228–29, 96 S.Ct. 2532, 49 L.Ed.2d 451 (declining to
apply procedural protections of the Due Process Clause to the daily functioning of state prisons and to “involve the judiciary
and issues and discretionary decisions that are not the business of federal judges”).
*10 In this instance, the arguments asserted by the petitioner, including that his due process and equal protection rights were
violated by his designation at FCI Ray Brook, lack merit. Moreover, his claims in this matter are procedurally barred by virtue
of his failure to fully exhaust available administrative remedies before commencing this proceeding. Accordingly, it is hereby
respectfully
RECOMMENDED that the petition in this matter be DENIED and DISMISSED in all respects; and it is further
RECOMMENDED, based upon my finding that Barber has not made a “substantial showing of the denial of a constitutional
right” pursuant to 28 U.S.C. § 2253(c)(2), that a certificate of appealability not issue with respect to any of the claims set forth
in this petition.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections
must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS
REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette,
984 F.2d 85 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance
with this court's local rules.
All Citations
Not Reported in F.Supp.2d, 2012 WL 5996342
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 23 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996866
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 5996866
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Edward BARBER, Petitioner,
v.
Russell PERDUE, Warden, 1 Respondent.
1 In his petition, Barber named Deborah Schult, who, at the time Barber commenced this action, served as the warden
at the Ray Brook Federal Correctional Institution (“FCI Ray Brook”), as a respondent. Because publically available
information discloses that Russell Perdue became the warden at FCI Ray Brook in February 2011, he is now the
appropriately named respondent, and the clerk of the court is respectfully directed to adjust court records to reflect this
change.
No. 9:11–CV–0127 (NAM/DEP).
|
Nov. 30, 2012.
Attorneys and Law Firms
Edward Barber, Atlanta U.S. Penitentiary, Atlanta, GA, pro se.
Hon. Richard S. Hartunian, United States Attorney, N.D.N.Y., Charles E. Roberts, Esq., Assistant U.S. Attorney, of Counsel,
Syracuse, NY, for Respondent.
ORDER
NORMAN A. MORDUE, District Judge.
*1 The above matter comes to me following a Report–Recommendation by Magistrate Judge David E. Peebles, duly filed on
the 9th day of November 2012. Following fourteen (14) days from the service thereof, the Clerk has sent me the file, including
any and all objections filed by the parties herein.
After careful review of all of the papers herein, including the Magistrate Judge's ReportRecommendation, and no objections
submitted thereto, it is
ORDERED that:
1. The Report–Recommendation is hereby adopted in its entirety.
2. The petition in this matter is denied and dismissed in all respects.
3. The petitioner has failed to make a substantial showing of a denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)
(2); accordingly, no certificate of appealability shall issue.
4. The Clerk of the Court shall serve a copy of this Order upon all parties and the Magistrate Judge assigned to this case.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 24 of 48

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
2012 WL 5996866
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 5996866
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 25 of 48

Reynolds v. Warden of FCI Raybrook, Not Reported in Fed. Supp. (2019)
2019 WL 8064012
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 8064012
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Thomas REYNOLDS, Petitioner,
v.
WARDEN OF FCI RAYBROOK, Respondent.
9:16-CV-1264 (TJM/TWD)
|
Signed 08/05/2019
Attorneys and Law Firms
OF COUNSEL: BERNARD V. KLEINMAN, ESQ., LAW OFFICES OF BERNARD V. KLEINMAN, PLLC, Attorney for
Petitioner, 108 Village Square, Suite 313, Somers, New York 10589-2305.
GRANT C. JAQUITH, United States Attorney Northern District of New York, OF COUNSEL: WILLIAM F. LARKIN, ESQ.,
Assistant United States Attorney, Attorney for Respondent, 100 South Clinton Street, Syracuse, New York 13261.
REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
*1 Currently before the Court for a Report-Recommendation is Thomas Reynolds’ (“Reynolds”) amended petition for a writ
of habeas corpus, under 28 U.S.C. § 2241 (hereinafter “Section 2241”). (Dkt. No. 16.) Reynolds claims that he is entitled to
a thirty-three-month credit on his forty-two-year federal prison sentence under 18 U.S.C. § 3585 (hereinafter “Section 3585”)
and the United States Sentencing Guidelines (“U.S.S.G.”) § 5G1.3(b) (hereinafter “Section 5G1.3(b)”). As discussed below,
the undersigned recommends that the District Court deny Reynolds’ amended petition.
I. BACKGROUND
On January 7, 2004, the Honorable Edward R. Korman, U.S. District Judge in the Eastern District of New York, re-sentenced
Reynolds who had pled guilty to racketeering conspiracy (18 U.S.C. § 1962) and bank larceny (18 U.S.C. § 2113) in United
States v. Reynolds, Nos. 99-520, 00-824 (E.D.N.Y.). 1 (Dkt. Nos. 16-12; 24-2 at 20.) Reynolds was sentenced pursuant to a
plea agreement under Fed. R. Crim. P. 11(c), that contemplated a sentence range between thirty-six and forty-two years. (Dkt.
No. 24-2 at 4); see also United States v. Reynolds, No. 99-CR-520 (E.D.N.Y.), (Dkt. No. 692.) Ultimately, Reynolds received
a forty-two-year prison sentence.
1 Reynolds filed a petition under 28 U.S.C. § 2255 to vacate his original guilty plea and sentence. (Dkt. No. 16-10.) Judge
Korman granted the petition on July 25, 2003, and vacated Reynolds’ original guilty plea and sentence. (Id.; see also
Reynolds v. United States of America, No. 1:02-cv-01622-ERK (E.D.N.Y.), Dkt. Nos. 1, 15.)
On October 7, 2016, Reynolds’ prior counsel, Bernard V. Klienman, requested that the Court extend his Criminal Justice Act
appointment to address a potential basis for a habeas corpus petition and to grant him permission to visit Reynolds. (Dkt. No.
1-1 at 2.) According to Mr. Klienman, Judge Korman and the United States Probation Office failed to address whether Reynolds
merited credit under Section 5G1.3(b) and Section 3585(b) for nine months—between June 1999 and February 2000—he spent
in federal custody while serving a state sentence. (Dkt. No. 1-1 at 1-2.) Judge Korman treated the October 7, 2016, letter as
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 26 of 48

Reynolds v. Warden of FCI Raybrook, Not Reported in Fed. Supp. (2019)
2019 WL 8064012
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
a petition for a writ of habeas corpus under Section 2241, and ordered the case transferred to this court because Reynolds is
incarcerated in the Northern District of New York at F.C.I. Ray Brook in Ray Brook, New York. (Dkt. No. 2.)
Thereafter, on November 28, 2016, Reynolds filed an amended petition for a writ of habeas corpus under Section 2241. (Dkt.
No. 16.) In his amended petition, Reynolds claims that he is entitled to a thirty-three-month credit on his federal prison sentence
under Section 3585(b) and Section 5G1.3(b) because he was incarcerated on a state charge that was related to his ultimate
federal sentence. (Id.) Respondent filed a response challenging whether: (1) this Court is the proper venue to hear Reynolds’
petition, (2) Reynolds exhausted his administrative remedies; and (3) Section 5G1.3(b) can provide relief where Reynolds was
sentenced under a Fed. R. Crim. P. 11(c) plea agreement. (Dkt. No. 24.) Reynolds replied (Dkt. No. 28) and the parties each
submitted supplementary letters describing their positions (Dkt. Nos. 29, 31, 33).
II. PROCEDURAL ISSUES
*2 As stated above, Respondent raised two procedural issues that must be addressed before considering the amended petition's
merits. The first is whether Reynolds’ amended petition is, in substance, a motion under 28 U.S.C. § 2255 (hereinafter “Section
2255”). If so, Reynolds’ amended petition belongs in “the court [that] imposed the sentence,” 28 U.S.C. § 2255(a), i.e., with
Judge Korman in the Eastern District of New York. The second issue is whether—regardless of its form—the Court should
dismiss Reynolds’ amended petition because he failed to exhaust his administrative remedies.
A. The Nature of Reynolds’ Petition
A challenge to the imposition of a sentence is properly brought as a petition pursuant to Section 2255, while a challenge to the
execution of a sentence is properly brought as a habeas corpus petition pursuant to Section 2241. Levine v. Apker, 455 F.3d
71, 77-78 (2d Cir. 2006); Poindexter v. Nash, 333 F.3d 372, 377-78 (2d Cir. 2003). Given that each legal vehicle prescribes
a different remedy, each statute dictates a specific venue to commence each challenge. To wit, a petition pursuant to Section
2255 must be filed in the district court “which imposed the sentence” being challenged, 28 U.S.C. § 2255(a), and a petition
pursuant to Section 2241 must be filed in the district court embracing the location where the prisoner is currently in custody,
28 U.S.C. § 2241(d).
Here, a fair reading of the amended petition reveals it is properly in this Court as a petition for habeas corpus relief under Section
2241. Though Respondent attempts to classify the amended petition as seeking relief pursuant to Section 5G1.3(b) in the form
of a downward departure in Reynolds’ sentence, that is not the basis for which Reynolds seeks relief. (Dkt. No. 24 at 4-6.)
Rather, Reynolds discusses Section 5G1.3(b) by analogy and not to literally seek that this Court re-sentence him. (Dkt. No. 28
at 6 (stating that Section 5G1.3(b) is the “ ‘functional equivalent’ of Section 3585(b)”) (quoting Lopez v. Terrell, 634 F.3d 136,
178 (2d Cir. 2011)).) Functionally, Reynolds seeks an Order from this Court instructing the Bureau of Prisons (“BOP”) to credit
time he served in state custody against his federal sentence pursuant to Section 3585(b). 2 (Id. at 6-7.)
2 To the extent that Reynolds is arguing for relief under Section 5G1.3(b), this issue is more appropriately resolved by
the sentencing court pursuant to a motion under Section 2255 rather than this court pursuant to a petition under Section
2241. See Dixon v. Terrell, No. 10-CV-5262, 2011 WL 4543712, at *11 (E.D.N.Y. Sept. 29, 2011); Jackson v. Killian,
No. 08–CV–4386, 2009 WL 1835004, at *3 (S.D.N.Y. June 23, 2004) (“Challenging the sentencing court's section
5G1.3 calculation is ‘more appropriately brought as an issue for the sentencing court pursuant to a motion under section
2255, rather than the district court in a section 2241 habeas petition where petitioner is held in custody.’ ” (quoting
Saunders v. Unnamed Warden, No. 07–CV–4293, 2008 WL 2775763, at *7 (D.N.J. July 14, 2008) (denying habeas
petition pursuant to Section 2241 where petitioner argued that he was entitled to a downward departure or sentence
reduction under Section 5G1.3))).
As such, Reynolds’ petition challenges the execution of his sentence, i.e., the BOP's calculation of the credit to be given for
other periods of detention, not its imposition. See Simmons v. Fed., Prison Employees, of the Fed. Bureau of Prisons, 639 F.
Supp. 2d 402, 405 (S.D.N.Y. 2009) (stating that “[c]redit time under 18 U.S.C. § 3585 ‘is granted by the Attorney General
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 27 of 48

Reynolds v. Warden of FCI Raybrook, Not Reported in Fed. Supp. (2019)
2019 WL 8064012
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
through the Bureau of Prisons after a defendant is sentenced, not by a district court at the time of sentencing’ ”) (quoting United
States v. Keller, 58 F.3d 884, 894 (2d Cir. 1995)); see also Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997) (noting
that “[a] challenge to the execution of a sentence, ... is properly filed pursuant to Section 2241”); United States v. Werber, 51
F.3d 342, 349 n.17 (2d Cir. 1995) (stating that a challenge to the BOP's application of 18 U.S.C. § 3585 should be filed pursuant
to Section 2241 petition). Accordingly, the Court finds that Reynolds’ amended petition was brought under Section 2241 and
is properly venued in the Northern District of New York.
B. Exhaustion of Remedies
*3 The Second Circuit has established an administrative exhaustion requirement on habeas corpus petitions inmates bring
under Section 2241. See United States ex rel. Scranton v. State of New York, 532 F.2d 292, 294 (2d Cir. 1976); Washington v.
United States, No. 05-cr-558, 2016 WL 11448326, at *1 (E.D.N.Y. Dec. 23, 2016) (petitioner claiming sentence improperly
calculated by the BOP must exhaust administrative remedies under the Administrative Remedy Program (“ARP”), 28 C.F.R.
§ 542.10-542.16, before bringing a habeas petition under Section 2241). Specifically, federal inmates must exhaust each of the
following steps in the ARP before obtaining relief in federal court: (1) attempting to resolve the issue informally, see 28 C.F.R.
§ 542.13; (2) submitting a formal written Administrative Remedy Request to the warden of the facility in which the inmate
is confined, see id. § 542.14(3); (3) appealing to the BOP Regional Director, see id. § 542.15; and (4) appealing to the BOP
Office of General Counsel, see id. No administrative appeal is fully exhausted until the BOP's Central Office reviews it. See
Spring v. Shult, No. 9:08-CV-0531, 2009 WL 3232183, at *1 (N.D.N.Y. Oct. 1, 2009). The burden of demonstrating exhaustion
rests with the Section 2241 petitioner. Id.
The main dispute relative to exhaustion in this case involves the timing for when Reynolds filed his amended petition. As
recounted above, this action was commenced by letter dated October 7, 2016 (Dkt. No. 1), and Reynolds filed his amended
petition on November 28, 2016. (Dkt. No. 16.) Respondent accurately notes Reynolds had not yet completely exhausted his
administrative remedies prior to filing his amended petition. (Dkt. No. 24 at 6-8.) However, as Respondent also acknowledges,
Reynolds did exhaust his administrative remedies at the latest on April 24, 2017, when the BOP's Central Office formally denied
his appeal. (Dkt. No. 33.) Thus, the precise issue is not whether Reynolds exhausted his remedies, but rather whether Reynolds’
petition—which was filed before the BOP issued its final decision—should be dismissed for being filed early.
In support of its position, Respondent points to several cases where courts have stated that a party must exhaust remedies before
the commencement of the action. (Dkt. No. 24 at 7 (citing cases); Dkt. No. 29.) None of these cases, however, consider whether
the court must dismiss a petition where petitioner exhausted his administrative remedies during the pendency of the Court's
review. As stated above, Reynolds exhausted his remedies as of April 24, 2017, at the latest, and the BOP denied his application
for relief. (Dkt. No 33.) Thus, the issues in Reynolds’ petition are not moot, are fully briefed, and are now ripe for review.
In Uziel v. Hadden, 779 F.2d 4 (2d Cir. 1985) (per curiam), the Second Circuit held that a district court should have allowed
the petitioner's pending administrative remedies to conclude rather than dismissing the petition for failure to exhaust. Id. at 5.
In Uziel, the petitioner filed his petition on May 31, 1984, and the parole office re-opened the challenged decision on July 26,
1984. See id. at 4-5. The district court dismissed the petition because the re-opening of the challenged decision created new
administrative avenues to challenge the parole office's subsequent decision. Id. at 5. The Second Circuit reversed, holding that
the district court “should rather have held the petition in abeyance pending an exhaustion of these new administrative remedies,
at which time the court presumably would address the merits of the petition or any amended petition that might be filed.”
Id. (citation omitted). Here, through the passage of time, Reynolds’ administrative remedies have been fully exhausted such
that it is now appropriate to consider the amended petition's merits. Forcing Reynolds to re-file his petition would only cause
unnecessary delay and waste judicial resources. 3
3 Moreover, this action was originally commenced sua sponte through the Court's conversion of a letter request filed in
the Eastern District of New York under the original criminal case (99-CR-520 at Dkt. No. 757) to a petition pursuant to
28 U.S.C. § 2241. (Dkt. No. 2.) After that conversion, this Court set a deadline requiring Reynolds to file an amended
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 28 of 48

Reynolds v. Warden of FCI Raybrook, Not Reported in Fed. Supp. (2019)
2019 WL 8064012
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
petition before he could have exhausted his remedies. (Dkt. Nos. 5, 13.) Thus, Reynolds’ counsel was left with the
difficult decision of complying with the Court's order or seeking a delay in the proceedings until the BOP issued a final
decision.
*4 Accordingly, the Court finds that dismissing Reynolds’ petition on the ground that he failed to exhaust his administrative
remedies is not warranted.
III. REYNOLDS’ AMENDED PETITION
Turning to Reynolds’ amended petition, the principle issue is whether the BOP appropriately applied Section 3585 when it
denied Reynolds’ request to credit time he spent in state custody to his federal sentence. A straightforward application of Section
3585(b) confirms that the BOP correctly denied Reynolds’ application. Accordingly, for the reasons discussed below, the Court
recommends that the amended petition be dismissed.
18 U.S.C. § 3585, titled, “Calculation of a term of imprisonment,” provides in full:
(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.
Id.
Under Section 3585(b), therefore, the BOP will grant a defendant “credit” against his or her federal sentence for time served in
custody prior to sentencing in district court so long as that presentence custody “has not been credited against another sentence.”
18 U.S.C. § 3585(b); see United States v. Labeille–Soto, 163 F.3d 93, 99 (2d Cir. 1998) (“[A] defendant has no right to credit
on his federal sentence for time that has been credited against his prior state sentence.”).
According to Reynolds, he deserves credit for the following periods of time he spent in custody on his state sentence:
April 7, 1995 – February 1996 7 months
March 17, 1996 – August 7, 1997 15 months
December 1997 – January 4, 1999 3 months
June 1, 1999 – June 10, 1999 10 days
June 10, 1999 – February 11, 2000 8 months
(Dkt. No. 16-1 at 18.) These thirty-three-months for which Reynolds seeks credit were spent in custody because of an arrest
in 1994 related to a weapons charge and subsequent parole violations. (Id. at 17.) According to Reynolds, the time he spent
in state custody on the 1994 weapons charge was for conduct that was “relevant conduct,” as that term is defined in Section
5G1.3(b). (Id.)
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 29 of 48

Reynolds v. Warden of FCI Raybrook, Not Reported in Fed. Supp. (2019)
2019 WL 8064012
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
Section 5G1.3(b) applies where a “defendant faces punishment for the same criminal conduct in two prosecutions[,] ... [and]
ensures that the defendant receives ‘credit’ for time already served to eliminate double punishment.” United States v. Fermin,
252 F.3d 102, 109 (2d Cir. 2001) (citing Witte v. United States, 515 U.S. 389, 404–05 (1995)). Reynolds asserts Section 3585(b)
and Section 5G1.3(b) are “functional equivalents” and that Section 3585 and Section 5G1.3(b) operate together so that a person
does not face separate terms of imprisonment for the same conduct. (Dkt. No. 28 at 5 (citation omitted).)
As Reynolds points out, Section 5G1.3(b) and Section 3585 often complement one another. See United States v. Gonzalez, 192
F.3d 350, 354 (2d Cir. 1999) (holding that because the defendant's presentence custody was credited to his state sentence, no
Section 3585(b) credit was available; thus, U.S.S.G. § 5G1.3(b) applied). For example, in United States v. Knight, 562 F.3d
1314 (11th Cir. 2009), the Eleventh Circuit held that the sentencing court erred in failing to apply a downward departure for time
the defendant spent in custody under Section 5G1.3(b) because the BOP would not give credit for that same time under Section
3585. Id. at 1329. Reynolds asserts that his case is the mirror image of Knight, i.e., because he should be entitled to sentence
credit for the thirty-three-months he was in custody on a related state charge under Section 5G1.3(b) but was not granted such
credit, the Court should order the BOP to credit him for the same time under Section 3585(b). (Dkt. No. 16-1 at 22 (arguing
that “[w]hile § 3585(b) grants the Bureau of Prisons (“BOP”) the power to award credit for time spent in custody prior to the
imposition of a sentence, Section 5G1.3(b), however, is applicable where the BOP would not otherwise award this credit. In
these situations, it is necessary for the reviewing court to apply the credit itself in order to prevent the defendant from serving
a sentence that is longer than is appropriate under the Guidelines.”).)
*5 Reynolds has not cited any authority that has applied Section 3585(b) in the novel manner he proposes. Rather, the Court
finds the interplay between Section 5G1.3(b) Section 3585 is a red herring and legally unrelated to whether the BOP properly
applied Section 3585(b) in his case.
To that end, Reynolds superimposes a false equivalence between Section 5G1.3(b) and Section 3585. Section 3585, by its
terms, is merely an administrative statute that ensures pre-sentence custody does not go uncounted towards a person's ultimate
sentence. As stated above, Section 3585(a) provides that: “[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.” 18 U.S.C. § 3585(a). Thus, a defendant's sentence does not commence
until after it has been imposed and the defendant is traveling to or arrives at the designated detention facility. Accordingly, if a
defendant had spent time in custody prior to a court imposing his or her sentence, that time would not technically count towards
that sentence pursuant to Subsection (a). See id. Subsection (b), however, ensures time spent in pre-sentence custody (even if
on an unrelated arrest) is credited against a defendant's sentence so long as it has not been credited against another sentence. Id.
at 3585(b). Together, Section 3585’s purpose is to ensure a defendant earns credit for each day he or she is in custody against at
least one sentence. Section 3585 is not equivalent to Section 5G1.3(b) which seeks to prevent double punishment for the same
or related criminal act through an adjustment of the defendant's ultimate sentence.
Accordingly, the Court finds that it is irrelevant whether Reynolds’ time in state custody might satisfy Section 5G1.3(b)’s
requirements because this petition seeks the Court's review of the BOP's decision under Section 3585. When properly confined
to the salient issue, Reynolds’ petition lacks merit. To wit, Reynolds seeks credit for thirty-three-months he spent in state custody
while he was admittedly serving his state sentence and receiving credit against his state sentence. Under Section 3585(b), a
defendant may only receive credit for time in custody “that has not been credited against another sentence.” 18 U.S.C. § 3585(b).
Accordingly, the Court finds Reynolds is not entitled to credit against a federal sentence for time he spent incarcerated that
counted towards the term of his state sentence. See United States v. Wilson, 503 U.S. 329, 337 (1992); United States v. Labeille–
Soto, 163 F.3d 93, 99 (2d Cir. 1998); Werber v. United States, 149 F.3d 172, 173 (2d Cir. 1998). 4
4 It is of no moment that Reynolds was transferred from state to federal custody by writ of habeas corpus ad prosequendum
while he was still serving his state sentences, because he was still legally in state custody pursuant to those sentences
at that time. See, e.g., United States v. Smith, 812 F. Supp. 368, 371 (E.D.N.Y. 1993) (“A federal writ of habeas corpus
ad prosequendum merely loans the prisoner to federal authorities.”); id. at 371 (“A federal sentence does not begin to
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 30 of 48

Reynolds v. Warden of FCI Raybrook, Not Reported in Fed. Supp. (2019)
2019 WL 8064012
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
run ... when the defendant is produced for prosecution in federal court pursuant to a federal writ of habeas corpus ad
prosequendum. Rather, the state retains primary jurisdiction over the prisoner, and federal custody commences only
when the state authorities relinquish the prisoner on satisfaction of the state obligations.”).
IV. CONCLUSION
*6 The Court finds that the BOP correctly applied Section 3585(b) in denying Reynolds’ request for credit. (Dkt. No. 33.)
ACCORDINGLY, it is hereby
RECOMMENDED that Reynolds’ amended petition for a writ of habeas corpus (Dkt. No. 16) be DENIED and DISMISSED
in its entirety.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing
report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
All Citations
Not Reported in Fed. Supp., 2019 WL 8064012
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 31 of 48

Reynolds v. Warden of FCI Ray Brook, Not Reported in Fed. Supp. (2020)
2020 WL 918766
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 918766
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Thomas REYNOLDS, Petitioner,
v.
WARDEN OF FCI RAY BROOK, Respondent.
9:16-CV-1264 (TJM/TWD)
|
Signed 02/26/2020
Attorneys and Law Firms
Bernard V. Kleinman, Law Office of Bernard V. Kleinman, PLLC, Somers, NY, for Petitioner.
Charles E. Roberts, William F. Larkin, Office of the United States Attorney, Syracuse, NY, for Respondent.
DECISION & ORDER
THOMAS J. McAVOY, Senior United States District Judge
I. INTRODUCTION
*1 Currently before the Court is Thomas Reynolds’(“Reynolds”) amended petition for a writ of habeas corpus under 28 U.S.C.
§ 2241 (hereinafter “Section 2241”). Dkt. No. 16. Reynolds claims that he is entitled to a thirty-three-month credit on his
forty-two-year federal prison sentence under 18 U.S.C. § 3585 (hereinafter “Section 3585”) and the United States Sentencing
Guidelines(“U.S.S.G.”) § 5G1.3(b) (hereinafter “Section 5G1.3(b)”). The matter was referred to the Hon. Thérèse W. Dancks,
United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In
her August 25, 2019 Report-Recommendation (“Rep. Rec.”), Magistrate Judge Dancks recommends that Reynolds’ amended
petition for a writ of habeas corpus, Dkt. No. 16, be denied and dismissed in its entirety. Dkt. No. 41. Reynolds, through counsel,
filed timely objections to this recommendation. Dkt. No. 44.
II. BACKGROUND
Magistrate Judge Dancks recites the relevant background of this case. See Rep. Rec., at 2-3. Suffice it to say for purposes of
addressing Reynolds’ objections, Reynolds was resentenced on January 7, 2004 by the Hon. Edward R. Korman, U.S. District
Judge in the Eastern District of New York, to a forty-two-year prison sentence pursuant to a Fed. R. Crim. P. 11(c)(1)(C) guilty
plea to racketeering conspiracy (18 U.S.C. § 1962) and bank larceny (18 U.S.C. § 2113). 1 In October 2016, Reynolds filed a
letter before Judge Korman which argued that Judge Korman and the United States Probation Office failed to address whether
Reynolds merited credit under Section 5G1.3(b) and Section 3585(b) for nine months—between June 1999 and February 2000
—he spent in federal custody while serving a state sentence. Dkt. No. 1-1 at 1-2. Judge Korman treated the letter as a petition for
a writ of habeas corpus under Section 2241, and ordered the case transferred to this court because Reynolds is incarcerated in the
Northern District of New York at F.C.I. Ray Brook in Ray Brook, New York. Dkt. No. 2. On November 28, 2016, Reynolds filed
an amended petition for a writ of habeas corpus under Section 2241. Dkt. No. 16. In his amended petition, Reynolds claims that
he is entitled to a thirty-three-month credit on his federal prison sentence under Section 3585(b) and Section 5G1.3(b) because
he was incarcerated on a state charge that was related to his ultimate federal sentence. Id. After addressing two procedural issues
that are not in issue here, Magistrate Judge Dancks concluded:
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 32 of 48

Reynolds v. Warden of FCI Ray Brook, Not Reported in Fed. Supp. (2020)
2020 WL 918766
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
[I]t is irrelevant whether Reynolds’ time in state custody might satisfy Section 5G1.3(b)’s requirements because this petition
seeks the Court's review of the [Bureau of Prisons’ (“BOP”)] decision under Section 3585. When properly confined to the
salient issue, Reynolds’ petition lacks merit. To wit, Reynolds seeks credit for thirty-three-months he spent in state custody
while he was admittedly serving his state sentence and receiving credit against his state sentence. Under Section 3585(b),
a defendant may only receive credit for time in custody “that has not been credited against another sentence.” 18 U.S.C. §
3585(b). Accordingly, the Court finds Reynolds is not entitled to credit against a federal sentence for time he spent incarcerated
that counted towards the term of his state sentence. See United States v. Wilson, 503 U.S. 329, 337 (1992); United States v.
Labeille–Soto, 163 F.3d 93, 99 (2d Cir. 1998); Werber v. United States, 149 F.3d 172, 173 (2d Cir. 1998).
*2 Rep. Rec., at 11 (emphasis in original, footnote omitted).
1 On February 23, 2001 Reynolds was sentenced to life imprisonment. Reynolds thereafter filed a petition under 28 U.S.C.
§ 2255 to vacate his original guilty plea and sentence, which Judge Korman granted on July 25, 2003.
III. STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged, the district court makes a “de novo determination
of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The Court must make a de novo determination
to the extent that a party makes specific objections to a magistrate's findings). When performing a de novo review, “[t]he
judge may ... receive further evidence....” 28 U.S.C. § 636(b)(1). “However, a district court will ordinarily refuse to consider
evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.” Monroe v.
Kocienski, No. 9:17-CV-1050 (GTS/DEP), 2019 WL 409412, at *2 (N.D.N.Y. Feb. 1, 2019)(citing, inter alia, Paddington
Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a magistrate's report before the district court,
a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing
before the magistrate.”)(internal quotation marks and citations omitted); Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters,
894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not abuse its discretion in denying plaintiff's request to
present additional testimony where plaintiff “offered no justification for not offering the testimony at the hearing before the
magistrate”)). “Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented
to the magistrate judge in the first instance.” Id. (citing Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1
(E.D.N.Y. Aug. 15, 2011) (“[I]t is established law that a district judge will not consider new arguments raised in objections
to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal
quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is
established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and
recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks omitted)); see also
Charlot v. Ecolab, Inc., 97 F. Supp. 3d 40, 51 (E.D.N.Y. 2015)(“[A] district court generally will not consider new arguments
raised for the first time in objections to a magistrate judge's report and recommendation that could have been raised before the
magistrate but were not.”)(citing cases); Santiago v. City of New York, No. 15-cv-517, 2016 WL 5395837, at *1 (E.D.N.Y. Sept.
27, 2016), aff'd, 697 F. App'x 36 (2d Cir. Sept. 6, 2017) (“[C]ourts ordinarily refuse to consider arguments, case law and/or
evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance.”)(quotations
and citation omitted)). “[F]or the district judge to review new evidence or arguments would reduce the magistrate's work to
something akin to a meaningless dress rehearsal,” Michalow v. East Coast Restoration & Consulting Corp., No. 09-cv-5475,
2018 WL 1559762, at * 6 (E.D.N.Y. Mar. 31, 2018)(quotations and citation omitted), and would frustrate the congressional
objective behind § 636(b)(1) which is intended to alleviate the congestion of litigation in the district courts. Cf. U.S. v. Raddatz,
447 U.S. 667, 676, n.3 (1980) (“[T]o construe § 636(b)(1) to require the district court to conduct a second hearing whenever
either party objected to the magistrate's credibility findings would largely frustrate the plain objective of Congress to alleviate
the increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition
(“The term ‘de novo’ does not indicate that a secondary evidentiary hearing is required.”)). After reviewing the report and
recommendation, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 33 of 48

Reynolds v. Warden of FCI Ray Brook, Not Reported in Fed. Supp. (2020)
2020 WL 918766
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.”
28 U.S.C. § 636(b).
IV. DISCUSSION
*3 To the extent that Reynolds objects on the ground that the record is devoid of indication that some or all of the 33 months
for which he seeks credit on his federal sentence were credited against his state sentence, see Dkt. No. 44, at ECF pp. 16-20, the
objection is overruled. The arguments underlying this objection could have been but were not presented to Magistrate Judge
Dancks and, therefore, the Court need not consider them. Further, the arguments are contradicted by Reynolds’ assertions in
this matter. See Dkt. No. 16-1, at ECF pp. 1-2; 2 17-18; 3 17, fn. 12; 4 20; 5 29. 6
2 (“It is the position of the Petitioner that the lower Court erred, at the time of sentencing, in its failure to grant credit to the
Petitioner for the amount of time he had spent while in the custody and care of the New York Department of Corrections
and Community Supervision (“DOCCS”) for a New York State conviction, as set forth below.”)
3 (“On February 11th, 2000, Reynolds, though in federal custody, was formally discharged from his state sentence. Thus,
the amount of time Reynolds was in state custody on [his conviction for Criminal Possession of a Weapon in the Third
Degree in violation of N.Y. Penal L. § 265.02] (to which he merits credit) was as follows: April 7, 1995 to February
1996: 7 months[,] March 17, 1996 to August 7, 1997: 15 months[,] December 1997 to January 4, 1999: 3 months (only
three months were credited to the underlying state charge)[,] June 1, 1999 to June 10, 1999: 10 days[,] June 10, 1999
to February 11, 2000: 8 months (Federal custody while serving state sentence (concurrent time))[.] The total amount of
Credit Time (under § 5G1.3) thus comes to 33 months.”)
4 (“It is the position of the Petitioner that his entitlement to credit on the state charge includes the time spent in the halfway
houses.”)
5 (“It is the Petitioner's position, herein, that the sentencing Court should have granted him a credit as against his federal
sentence of the time that he was in custody (as that term is defined by the courts) under the State conviction in April
1995. According to the Petitioner's calculation, he is merited a credit of 33 months on his time held by the federal Bureau
of Prisons.”)
6 (“It is undisputed that Reynolds merits credit for the time he was still under state custody and turned over to the federal
authorities on the habeas corpus ad prosequendum.... This is the period from June 10, 1999 until his formal discharge
of sentence on February 11, 2000 — a period of eight months.”)
To the extent Reynolds objects on the ground that Magistrate Judge Dancks’ ultimate conclusion was erroneous, the objection
is overruled. Upon conducting a de novo review, the Court adopts Magistrate Judge Dancks’ recommendation for the reasons
stated in her thorough report. Further, there is no basis, as Reynolds requests, to “remand the matter to the Eastern District of
New York for further proceedings” under Section 2255 instead of dismissing the petition in its entirety. Dkt. No. 44, at 8, fn. 6.
The matter before the Court is a petition for a writ of habeas corpus pursuant to Section 2241, not Section 2255. T his Court does
not have appellate jurisdiction over the decisions of its sister district courts, and therefore remand is inappropriate. Because this
Court does not rule on the merits of any potential Section 2255 claim that Reynolds may have, dismissal of the Section 2241
petition does not bar Reynolds from filing a Section 2255 motion in the sentencing court.
V. CONCLUSION
For the reasons discussed above, the Court ACCEPTS and ADOPTS Magistrate Judge Dancks’ recommendation in the Report-
Recommendation, Dkt No. 41, for the reasons stated in her report. Therefore, it is hereby
*4 ORDERED that Reynolds’ amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, Dkt. No. 16, is
DENIED and DISMISSED in its entirety, and it is further,
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 34 of 48

Reynolds v. Warden of FCI Ray Brook, Not Reported in Fed. Supp. (2020)
2020 WL 918766
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
ORDERED that no certificate of appealability (“COA”) shall issue because Petitioner failed to make a “substantial showing of
the denial of a constitutional right” as 28 U.S.C. § 2253(c)(2) requires. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“§
2253 permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional
right”).
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 918766
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 35 of 48

Dennis v. Christensen, Slip Copy (2025)
2025 WL 1885207
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1885207
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andre Maurice DENNIS, Petitioner,
v.
D. CHRISTENSEN, Warden, Respondent.
9:22-CV-0997 (AJB/ML)
|
Signed April 28, 2025
|
Filed April 29, 2025
Attorneys and Law Firms
ANDRE MAURICE DENNIS, Pro se Petitioner, Ray Brook Federal Correctional Institution, Post Office Box 900, Ray Brook,
New York 12977.
HON. JOHN A. SARCONE, III, Interim United States Attorney for the Northern District of New York, RANSOM P.
REYNOLDS, ESQ., Assistant United States Attorney, Counsel for Respondent, 100 South Clinton Street, Syracuse, New York
13261.
REPORT and RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
I. INTRODUCTION
*1 Currently before the Court in this habeas corpus proceeding filed by the petitioner, Andre Maurice Dennis (“Petitioner”),
pursuant to 28 U.S.C. § 2241, is a referral to the undersigned for a report and recommendation from United States District
Judge Anthony J. Brindisi regarding the Petition. (Dkt. No. 1.) In seeking a writ of habeas corpus, Petitioner argues that (1) he
was wrongfully denied credit for 1,063 days of pretrial detention in non-federal custody, and (2) his rights were violated by the
failure to accurately apply his First Step Act (“FSA”) credits to his sentence. (Dkt. No. 1 at 2, 6-7.)
Respondent filed a response, with exhibits, to the Petition. (Dkt. No. 21.) Respondent seeks the denial of the Petition arguing
that (1) the Petition must be dismissed for failure to exhaust administrative remedies; and (2) even if Petitioner had properly
exhausted his administrative remedies, he is ineligible for application of FSA time credit pursuant to 18 U.S.C. § 3632(d)(4)
(D)(lxvi) because his crime involved fentanyl. (Id.)
Petitioner filed a traverse and argues that before commencing this action he made multiple attempts to resolve the matter and
the Bureau of Prisons (“BOP”) should grant him credit for his time in pretrial custody. (See generally Dkt. No. 24.)
II. BACKGROUND
On November 8, 2021, Petitioner was sentenced in the United States District Court for the District of Connecticut. (Dkt. No. 1 at
1; Dkt. No. 21, Attach. 1 at ¶ 4.) Petitioner was sentenced to a 72-month term of imprisonment with a 4-year term of supervised
release for possession with intent to distribute cocaine, cocaine base, heroin, and fentanyl in violation of 21 U.S.C. §§ 841(a)
(1), 841(b)(1)(B)(vi), and a 10-month term of imprisonment with a 3-year term of supervised release for unlawful possession
of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). (Dkt. No. 21, Attach. 1 at ¶ 4.)
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 36 of 48

Dennis v. Christensen, Slip Copy (2025)
2025 WL 1885207
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
Plaintiff has not filed a BOP Administrative Remedy submission under BOP's Administrative Remedy Program. (Id. at ¶ 7.)
III. LEGAL STANDARDS
A petitioner seeking relief pursuant to 28 U.S.C. § 2241 must exhaust their administrative remedies. See Carmona v. United
States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001). “This requires compliance with the BOP's four-step Administrative
Remedy Program.” Lallave v. Martinez, 609 F. Supp. 3d 164, 179 (E.D.N.Y. 2022) (citing 28 C.F.R. § 542.10(a)).
To exhaust the BOP's four-step Administrative Remedy Program a prisoner must complete the following steps:
The first step of the prescribed process entails making an effort to obtain an early resolution of the
matter by raising the issue informally to staff. In the event this avenue does not lead to a successful
resolution, the inmate next may submit a formal written [Administrative Remedy (“AR”)] to the
warden of the particular facility involved, utilizing a designated BP–9 form, within twenty days of the
relevant event. If the AR is denied, an appeal may be taken to the appropriate BOP Regional Director
within twenty calendar days of the date of denial. As a fourth and final step, an unfavorable decision
from the Regional Director may be appealed to the General Counsel's office (also referred to as the
“Central Office” [or “CORC”]) within thirty days of the date on which the Regional Director rejects
the inmate's appeal.
*2 Barber v. Perdue, 11-CV-0127, 2012 WL 5996342, at *4 (N.D.N.Y. Nov. 9, 2012) (Peebles, M.J.) (internal citations
omitted), report and recommendation adopted, 2012 WL 5996866 (N.D.N.Y. Nov. 30, 2012) (Mordue, J.). 1 In sum, “[n]o
administrative appeal is fully exhausted until the BOP's Central Office reviews it.” Reynolds v. Warden of FCI Ray Brook,
16-CV-1264, 2019 WL 8064012, at *3 (N.D.N.Y. Aug. 5, 2019) (Dancks, M.J.), affirmed, 850 F. App'x 132 (2d Cir. 2021).
The burden of demonstrating exhaustion rests with the petitioner. See Spring v. Schult, 08-CV-0531, 2009 WL 3232183, at *1
(N.D.N.Y. Oct. 1, 2009) (Kahn, J.).
1 The exhaustion provisions imposed by the Prisoner Litigation Reform Act (“PLRA”) do not apply to habeas corpus
Petitions. See Carmona, 243 F.3d at 634 (“[W]e note that although ... the P[LRA] ... contains a statutory administrative
exhaustion requirement, ... the requirements of the [PLRA] do not apply to habeas proceedings.”).
A federal inmate's failure to exhaust the administrative remedies available to him prior to commencing a Section 2241 action
may “only be excused upon a showing of cause and prejudice.” Carmona, 243 F.3d at 634. To demonstrate legal “cause,” a
petitioner must establish that “something external to the petitioner, something that cannot be fairly attributed to him,” prevented
the petitioner from fully exhausting his administrative remedies. Tineo v. United States, 977 F. Supp. 245, 253 (S.D.N.Y. 1996)
(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Factors that constitute “cause” include “interference by officials that
makes compliance with procedural rules impractical.” Hinebaugh v. Wiley, 137 F. Supp. 2d 69, 75 (N.D.N.Y. 2001) (cleaned
up) (Kahn, J.) (quoting Tineo, 977 F. Supp. at 253). General and conclusory allegations will not be enough to establish cause;
rather, a petitioner must plead specific facts. See Rosario v. Quay, 15-CV-0523, 2017 WL 337977, at *3 (D. Conn. Jan. 23,
2017). To establish prejudice, a petitioner must show “actual harm resulting from the alleged [interference].” Hinebaugh, 137
F. Supp. 2d at 75.
IV. ANALYSIS
After carefully considering the matter, I recommend that the Petition be denied and dismissed for the reasons stated in
Respondent's memorandum of law. (Dkt. No. 21 at 4-6.) The following is intended to supplement—not supplant—those reasons.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 37 of 48

Dennis v. Christensen, Slip Copy (2025)
2025 WL 1885207
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
“A prisoner who seeks review of the Bureau of Prisons’ denial of his nunc pro tunc designation request must first ... exhaust
his administrative remedies.” Henriquez v. United States, 12-CV-5590, 2012 WL 6739422, at *3 (S.D.N.Y. July 16, 2012)
(citing inter alia Setser v. United States, 566 U.S. 231, 244 (2012) (stating that petitioner is free to challenge BOP's time credit
determination first “through the Bureau's Administrative Remedy Program ... [a]nd if that does not work, [through] ... a writ of
habeas corpus.”)). In addition, a prisoner seeking review of BOP's failure to accurately apply his FSA credits to his sentence
must first exhaust his administrative remedies. See Mason v. Alatary, 23-CV-0193, 2024 WL 3950643, at *13-14 (N.D.N.Y.
Aug. 27, 2024) (Kahn, J.).
Petitioner and Respondent agree that Petitioner failed to fully exhaust his administrative remedies concerning his sentence
computation. (Dkt. No. 21, Attach. 1 at ¶ 7; Dkt. No. 24 at 2.) Although the Petition asserts that Petitioner appealed the
decision, filed a grievance, or sought an administrative remedy for his challenge (Dkt. No. 1 at ¶ 7), his Traverse acknowledges
that he was unable to obtain a B-9 form to submit a formal written Administrative Remedy to the warden. (Dkt. No. 21 at ¶
4.) Respondent states that Petitioner has never filed or attempted to file a BOP administrative remedy submission regarding
sentencing computation. (Dkt. No. 21 at 4; Dkt. No. 21, Attach. 1 at ¶ 7.) 2
2 “The BOP maintains a database known as the SENTRY Inmate Management System (“SENTRY”). In the ordinary
course of business, computerized indexes of all formal administrative remedies filed by inmates are maintained by the
Institution, Regional, and Central Offices.” Navarro v. Barraza, 23-CV-0514, 2023 WL 3483235, at *2 (M.D. Pa. May
16, 2023). Legal Assistants, like Cheryl Magnusson, have access to SENTRY and can review the database to determine
compliance with the Administrative Remedy Program. (Dkt. No. 21, Attach. 1 at ¶ 2.)
“Administrative remedy submissions in SENTRY are identified first by a remedy request number that is followed by an
alphabetic designation showing whether the remedy was received by the local correctional facility (denoted by a letter
“F”), Regional Office (denoted by a letter “R”), or Office of General Counsel (denoted by the letter “A”); and then a
number showing how many times a particular request had been received at that level.” McDonald v. Sage, 20-CV-1737,
2022 WL 503925, at *3 n.4 (D. Conn. Feb. 18, 2022).
“SENTRY generates a report titled ‘Administrative Remedy Generalized Retrieval’ which allows codes to be entered
to identify the reason or reasons for rejecting a request for administrative relief.” Navarro, 2023 WL 3483235, at *2.
The retrieval report was the attachment Magnusson relied upon while discussing the information in this section. (Dkt.
No. 21, Attach. 1 at ¶ 7; Dkt. No. 21, Attach. 3.)
*3 Petitioner has not properly exhausted his administrative remedies because he has not utilized all four steps of the
Administrative Review Process for his sentence computation/time credit claim. (Dkt. No. 21, Attach. 1 at ¶ 7.)
Therefore, Petitioner's claims are barred unless his failure to exhaust is excused pursuant to the “cause and prejudice” test.
Mason v. Alatary, 23-CV-0193, 2024 WL 3950643, at *14 (N.D.N.Y. Aug. 27, 2024) (Kahn, J.); Green v. Christensen, 22-
CV-1307, 2023 WL 4364186, at *5 (N.D.N.Y. July 6, 2023) (Sannes, C.J.) (quoting Barber, 2012 WL 5996342, at *5) (“The
Second Circuit has held that a petitioner may pursue a request for habeas corpus relief, including pursuant to 28 U.S.C. § 2241,
even where he has failed to exhaust administrative remedies prior to filing the action in district court, only upon a showing
of cause and prejudice.”).
Petitioner asserts that he attempted to resolve “this matter” through informal communication with staff. (Dkt. No. 24 at ¶ 3.)
However, Petitioner states that he was unable to obtain a B-9 form to submit a formal written to the warden. (Id. at ¶ 4.) Petitioner
asserts that he wrote letters to the Regional Offices and to the Central Office. (Id.) Liberally construing Petitioner's Traverse,
he seems to argue that the exhaustion requirement should be waived given his aforementioned efforts.
However, Petitioner has failed to present circumstances supporting waiver. “First, [P]etitioner's unwavering conclusion that
exhaustion was impossible because of his inability to procure BOP forms, either himself or via his family, is unpersuasive.”
Green, 2023 WL 4364186, at *5. Petitioner “fails to provide any type of evidence regarding the unsuccessful attempts he and his
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 38 of 48

Dennis v. Christensen, Slip Copy (2025)
2025 WL 1885207
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
family made to procure said forms.” Green, 2023 WL 4364186, at *5 (citing Zenquis v. Pullen, 22-CV-1151, 2023 WL 2931585,
at *4-5 (D. Conn. Apr. 13, 2023)) (emphasizing that “denial of grievance forms does not, in itself, make administrative remedies
unavailable,” yet finding petitioner sufficiently demonstrated, via documentation memorializing repeated requests to staff, that
their actions delaying the provision of administrative grievance forms was sufficient to establish cause and prejudice to waive
exhaustion). Petitioner fails to identify the time, place, and frequency with which he was unable to obtain “Administrative
Remedy” forms from Mr. Dunham. (Dkt. No. 24 at 2.) Petitioner's conclusory allegations without any detail or evidence are
insufficient to establish cause for his failure to exhaust administrative remedies. 3 But see Flores v. Derr, 23-CV-0183, 2023
WL 4236183, at *2 (D. Haw. June 28, 2023) (citing Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004); Miller v. Norris, 247 F.3d
736, 738, 740 (8th Cir. 2001); Untalan v. Derr, 23-CV-0091, 2023 WL 2868519, at *3 (D. Haw. Apr. 10, 2023); Sallas v. Derr,
23-CV-0084, 2023 WL 2794793, at *3 (D. Haw. Apr. 5, 2023)) (“Courts have waived the prudential exhaustion requirement
when a prison official has refused to provide an inmate with the form necessary to file an administrative grievance, determining
that the administrative process was unavailable.”).
3 Should the assigned District Judge disagree with this conclusion, the proper mechanism for resolving issues of fact
regarding whether a petitioner exhausted his administrative remedies is to “obtain additional documentation and hold
an evidentiary hearing.” Rosario-Santiago v. Pliler, 21-CV-3202, 2022 WL 2991015, at *5 (S.D.N.Y. July 7, 2022).
*4 As a result, I recommend that the Petition be denied and dismissed for failure to exhaust his administrative remedies. 4
4 In the alternative, I recommend that Petitioner's claim regarding application of FSA time credit be denied because he
is ineligible for application of FSA time credit for the reasons stated in Respondent's memorandum of law. (Dkt. No.
21 at 5-6.)
V. CERTIFICATE OF APPEALABILITY
To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner must obtain from the court a certificate
of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) (“[T]he applicant cannot take an appeal
unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”). In the
absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler
v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA 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); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a “substantial
showing” if “the issues are debatable among jurists of reason; ... a court could resolve the issues in a different manner; or ...
the questions are adequate to deserve encouragement to proceed further.” 5 Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)
(quotation marks omitted).
5 A similar standard applies when a COA is sought to challenge the denial of a habeas petition on a procedural basis. See
Slack v. McDaniel, 529 U.S. 473, 478 (2000) (“[A] COA should issue ... if 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.”).
In this instance, I find that jurists of reason would not find it debatable as to whether the petition in this matter is meritorious.
Accordingly, I recommend against the issuance of a COA.
ACCORDINGLY, it is
RECOMMENDED that the Petition (Dkt. No. 1) be DENIED and DISMISSED, and that a certificate of appealability not
be issued to Petitioner; 6 and it is further
6 In the alternative the undersigned recommends a hearing as set forth above in note 3.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 39 of 48

Dennis v. Christensen, Slip Copy (2025)
2025 WL 1885207
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on the parties, along with copies
of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76
(2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the
foregoing report. 7 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R.
Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989)).
7 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be
added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation,
and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period
falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a
Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
All Citations
Slip Copy, 2025 WL 1885207
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 40 of 48

Dennis v. Christensen, Slip Copy (2025)
2025 WL 1554003
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1554003
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andre’ Maurice DENNIS, Petitioner,
v.
D. CHRISTENSEN, Respondent.
9:22-CV-997 (AJB/ML)
|
Signed June 2, 2025
Attorneys and Law Firms
ANDRE’ MAURICE DENNIS, Petitioner, Pro Se, 26128-014, Ray Brook FCI, P.O. Box 900, Ray Brook, NY 12977.
HON. JOHN A. SARCONE III, RANSOM P. REYNOLDS, ESQ., Assistant United States Attorney, United States Attorney
for the Northern District of New York, Attorneys for Respondent, 100 S. Clinton Street, Syracuse, NY 13261.
ORDER ON REPORT & RECOMMENDATION
Anthony Brindisi, United States District Judge:
*1 On August 2, 2022, pro se petitioner Andre’ Maurice Dennis (“petitioner”), an individual in the custody of the Bureau
of Prisons (“BOP”), filed this 28 U.S.C. § 2241 petition for a writ of habeas corpus in the U.S. District Court for the District
of Connecticut. Dkt. No. 1. Petitioner also moved for leave to proceed in forma pauperis (“IFP Application”), Dkt. Nos. 2, 3,
and for the appointment of counsel, Dkt. No. 4. Thereafter, the presiding judge denied petitioner's IFP Application, Dkt. No.
7, and petitioner paid the $5.00 filing fee.
On September 6, 2022, the U.S. District Court for the District of Connecticut sua sponte ordered the petition transferred to this
judicial district. Dkt. No. 9. As the Text Order explained, petitioner's criminal case occurred in the District of Connecticut, but
he is presently incarcerated at FCI Ray Brook, a BOP facility located in the Northern District of New York. Id. The petition
was transferred to this district and assigned to U.S. District Judge David N. Hurd. Dkt. No. 10.
On September 27, 2022, U.S. Magistrate Judge Miroslav Lovric denied without prejudice petitioner's motion for counsel and
ordered respondent D. Christensen, the Warden of FCI Ray Brook (“respondent”), to respond to the § 2241 petition. Dkt. No.
11. After some extensions of time, the petition was fully briefed, Dkt. Nos. 21, 24, and reassigned to this Court, Dkt. No. 25.
On April 29, 2025, Judge Lovric advised by Report & Recommendation (“R&R”) that the petition be denied and dismissed.
Dkt. No. 28. As the R&R explained, the petition claimed that: (1) the BOP had wrongfully denied petitioner credit for the 1,063
days of pre-trial detention he spent in non-federal custody; and (2) petitioner's rights were violated by the BOP's failure to
accurately apply First Step Act (“FSA”) credits to his sentence. Id.
Judge Lovric concluded that he did not need to reach the merits of these claims because petitioner had failed to exhaust his
administrative remedies. Dkt. No. 28 at 6. Although Judge Lovric recognized that there are exceptions to this administrative
exhaustion requirement, the R&R concluded that petitioner had failed to demonstrate the kind of circumstances that might
warrant the application of any of them. Id. at 6–7. Alternatively, Judge Lovric recommended that petitioner's FSA-credit claim
be denied on the merits because the record established that he was ineligible for that form of relief. Id. at 7 & n.4.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 41 of 48

Dennis v. Christensen, Slip Copy (2025)
2025 WL 1554003
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
Petitioner has lodged objections to Judge Lovric's R&R. Dkt. No. 29. There, petitioner contends that he started the exhaustion
process, claims that the BOP knew that he was trying to seek relief, and argues that officials should have taken some further
action to assist him. See id.
Upon de novo review, Judge Lovric's R&R is accepted and will be adopted. See 28 U.S.C. § 636(b)(1)(C). Petitioner
acknowledged in his reply filing that he had failed to obtain the so-called “B-9 form” used to initiate a written appeal to the
Warden and conceded that, aside from “informal” attempts to resolve his claims (which is the first step in the process), the record
failed to demonstrate that he had utilized all four steps of the BOP administrative process. As relevant here, the R&R rejected
petitioner's assertions that, despite these concessions, the appeal forms might have been unavailable to him (and that exhaustion
should be excused) because those assertions were “conclusory allegations without any detail or evidence.” Dkt. No. 28 at 7.
*2 The same conclusion holds true now. Petitioner claims in his objections, again in wholly conclusory terms, that he exhausted,
or began to exhaust, his administrative remedies. Dkt. No. 29. And in the same paragraph of argument, petitioner appears to
claim that it was not his fault that he failed to fully exhaust. See id. In petitioner's view, the BOP should have done more to
help him navigate the process. See id.
Neither this argument, nor the two exhibits that petitioner has offered in support of it, are sufficient to create a fact question on
the issue of exhaustion or, relatedly, waiver. 1 As before, petitioner's objections fail to identify the kind of details that might
support a finding that the exhaustion requirement was fully met or should be excused—such as basic information about the
time, place, or frequency with which some identifiable prison official failed to, or refused to, supply petitioner with the forms
necessary to pursue his claims beyond the “informal” step.
1 For instance, petitioner attached a letter from the BOP dated December 19, 2024. Aside from the fact that this BOP
letter post-dates his § 2241 petition, which was filed on August 8, 2022, this letter instructs plaintiff to “utilize the
administrative remedy process” if he is unsatisfied with the letter's conclusion. Thus, this filing does not tend to show
exhaustion or attempted exhaustion of the claims in the petition, either.
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 28) is ACCEPTED;
2. The petition (Dkt. No. 1) is DENIED and DISMISSED; and
3. No Certificate of Appealability will be issued.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1554003
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 42 of 48

Cruz v. Rickard, Slip Copy (2025)
2025 WL 2722424
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2722424
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Francis Alberto Hilario Dela CRUZ, Petitioner,
v.
RICKARD, Warden, Respondent.
9:23-CV-407 (GTS/MJK)
|
Signed July 29, 2025
Attorneys and Law Firms
Francis Alberto Hilario Dela Cruz, Petitioner Pro Se.
Carl G. Eurenius, U.S. Attorney, for Respondent.
ORDER and REPORT-RECOMMENDATION
Mitchell J. Katz, United States Magistrate Judge
*1 To the Honorable Glenn T. Suddaby, U.S. District Judge:
The Honorable Glenn T. Suddaby, United States District Judge, referred this habeas petition to the Court for a Report and
Recommendation. 1 In his habeas petition, Plaintiff Francis Alberto Hilario Dela Cruz (“Cruz”) argues that the Bureau of
Prisons failed to apply the First Step Act time credits that he is entitled to. The Court disagrees with Cruz. So, for the reasons
below, the Court recommends denying Cruz's habeas petition in its entirety.
1 The District Court has the authority to refer dispositive motions to this Court for report and recommendation under 28
U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
I. BACKGROUND
Cruz pled guilty to possession with intent to distribute fentanyl (21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)) and illegal reentry
into the United States (8 U.S.C. §§ 1326(a) and 1326(b)(2)). (Conviction Sheet, Dkt. 10-2, at pgs. 2, 3). The sentencing court
sentenced Cruz to 60 months incarceration and four years supervised release. (Sentence Computation form, Dkt. 10-3, at pg. 2).
The Department of Homeland Security has issued a final order of removal against Cruz. (Immigration Detainer, Dkt. 10-5, at 2).
Cruz brings this habeas petition against the Bureau of Prisons for “failing to apply First Step Act credits” to his sentence.
(Petition Check Box Form, Dkt. 1, at 2); see also (Cruz Petition, Dkt. 1-1). The Government contested Cruz's petition, arguing
the Court should deny the petition because: (1) Cruz failed to exhaust the administrative remedies available to him, and (2)
Cruz's request for First Step Act time credits is meritless. (Govt. Br., Dkt. 10, 2-6). Cruz did not file a reply. (Dkt. 11).
II. GENERALLY APPLICABLE LAW
A. Habeas Corpus
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 43 of 48

Cruz v. Rickard, Slip Copy (2025)
2025 WL 2722424
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
“Habeas corpus relief under 28 U.S.C. § 2241 is available to individuals in custody in violation of the Constitution or laws or
treaties of the United States.” Portocarrero-Valencia v. Warden, FCI Otisville, 24-CV-6413, 2025 WL 670911 (S.D.N.Y. Feb.
28, 2025). Courts have the authority to review and grant petitions for a writ of habeas corpus when the petitioner shows they
are entitled to relief. See 28 U.S.C. § 2241(c)(3). Petitioners may use habeas petitions to challenge, among other things, the
computation of their sentence by prison officials. See Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006). Habeas petitioners bear
the burden of proving they are being held “contrary to law” and they must “satisfy [their] burden of proof by a preponderance
of the evidence.” Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011).
B. First Step Act
The First Step Act “encourages federal inmates to participate in evidence-based recidivism reduction programs” and “other
productive activities” by “providing time credits to” incarcerated persons “who successfully” participate in those programs.
Rivera-Perez v. Stover, 757 F. Supp. 3d 204, 207 (D. Conn. 2024). Bureau of Prison staff complete an incarcerated person's
“initial risk and needs assessment ... within 28 days of” their “arrival at the designated” prison. Id. They also reassess incarcerated
persons “at each regularly scheduled program review throughout the remainder of” the incarcerated person's confinement. See
id. (cleaned up). An incarcerated person “earns either 10 or 15 days of” First Step Act “time credits for every 30 days of
successful participation in” evidence-based recidivism reduction programs or productive activities. Id. at 208. (cleaned up).
III. DISCUSSION
*2 The Court recommends denying Cruz's petition. The Government has established that Cruz failed to exhaust the
administrative remedies available to him before starting this action. Likewise, Cruz's petition is meritless because he is not
entitled to First Step Act time credits.
A. The Court should deny Cruz's petition because he failed to exhaust the administrative remedies available to him.
The Court recommends denying Cruz's petition because he failed to exhaust his administrative remedies, a prerequisite to
seeking relief under 28 U.S.C. § 2241. His failure to do so is grounds for the District Court to deny his petition.
Incarcerated petitioners “must exhaust administrative remedies” before seeking “habeas relief under” 28 U.S.C. “§ 2241.”
Harriot v. Jamison, 24-CV-208, 2024 WL 2981150 at *2 (S.D.N.Y. June 13, 2024) (cleaned up). “Failure to exhaust
administrative remedies results in a procedural default, which bars judicial review unless the petitioner persuades the Court
that the failure to exhaust should be excused.” Id. (cleaned up). “Courts may excuse a habeas petitioner's failure to exhaust
administrative remedies where (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury
may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a petitioner
has raised a substantial constitutional question.” Portocarrero-Valencia, 2025 WL 670911 at *3 (S.D.N.Y. Feb. 28, 2025)
(cleaned up). Importantly, “Defendants bear the burden of proof” as to exhaustion, and incarcerated “plaintiffs need not plead
exhaustion with particularity.” Harriot, 2024 WL 2981150 at *2.
Cruz has not exhausted the administrative remedies available to him. The Government's records show that Cruz never filed a
grievance. See (Matteau Decl., Dkt. 10-1, pg. 6, at ¶ 16). In fact, Cruz agrees that he never filed a grievance. See (Cruz Petition,
Dkt. 1-1, at 3). 2 Beyond that, Cruz does not argue that his failure to file a grievance falls into any recognized exception that
would allow the District Court to find that his failure to exhaust should be excused. See (id.). As a result, the Court recommends
finding that Cruz has not exhausted.
2 Oddly, in his check box petition, Cruz claims that he filed a grievance and appealed the lack of a resolution twice. See
(Petition Check Box Form, Dkt. 1, at 2-3).
Cruz's counter argument is wrong. Cruz argues that his failure to exhaust should be excused because the Bureau of Prisons
denied him access to grievance forms (an argument that does not fall into one of the recognized exceptions). But not so. “An
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 44 of 48

Cruz v. Rickard, Slip Copy (2025)
2025 WL 2722424
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
unsuccessful request for grievance forms does not, without more, relieves a prisoner of the exhaustion requirement.” Cheng v.
United States, 725 F. Supp. 3d 432, 441 (S.D.N.Y. 2024). And in his petition, Cruz only claims that he was denied the ability
to “obtain the necessary forms to file his administrative remedies.” (Cruz Petition, Dkt. 1-1, at 3). Simply put, “no argument
could be made that the administrative remedies were not available to” Cruz “by virtue of” his allegation. Armand v. Simonson,
12-CV-7709, 2016 WL 1257972 at *22 (S.D.N.Y. Mar. 30, 2016).
B. The Court should deny Cruz's petition on the merits because he is not eligible for First Step Act time credits.
*3 The Court recommends denying Cruz's petition on the merits. The First Step Act bars individuals convicted under 8 U.S.C.
§§ 1326(a) and 1326(b)(1) or (b)(2) from obtaining time credits. The First Step act also bars individuals with a final order of
removal from obtaining time credits. Cruz falls into both categories. As a result, he is not entitled time credits. So the Court
recommends denying Cruz's habeas petition on the merits.
The First Step act bars the Bureau of Prisons from giving time credits to incarcerated individuals who: (1) were convicted of
violating 8 U.S.C. § 1326(a) and (2) fall within § 1326(b)(1) or (b)(2). See 18 U.S.C. § 3632(d)(4)(D)(lix). The Government
can easily establish both elements because Cruz was convicted of 8 U.S.C. §§ 1326(a) and 1326(b)(2). See (Conviction Sheet,
Dkt. 10-2, at pg. 3). As a result, the First Step act bars the Bureau of Prison from granting Cruz First Step Act time credits.
See United States v. Paulino, 19-CR-176, 2023 WL 5486304 at * 2 (D. Conn. Aug. 24, 2023) (“the reason” the petitioner “is
not eligible for earned time credits under the First Step Act is that he was convicted for a violation of 8 U.S.C. § 1326(a) and
falls within subsection (b)(1) .. ..”).
Cruz's counter argument is unpersuasive. Cruz argues that he is eligible for First Step Act time credits, because he does not have
a final order of deportation. (Cruz Petition, Dkt. 1-1, at pg. 3). But that is false. The Government submitted Cruz's final order of
removal with its response brief. (Immigration Detainer, Dkt. 10-5, at 2). In fact, the final order of deportation is an alternative
ground for denying Cruz First Step Act time credits. See 18 U.S.C. § 3623 (d)(4)(E)(i); cf. Cheng v. United States, 132 F.4th
655, 658 (2d Cir. 2025) (upholding the constitutionality of § 3623).
Cruz also wrongly argues that the Fifth and Eighth Amendment compels the Bureau of Prisons to assign him First Step Act
time credits. Not so. Cruz has not demonstrated that he has a protected liberty interest or property interest in the time credits.
See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (substantive due process); Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 571–72 (1972) (procedural due process). In fact, 18 U.S.C. § 3632(d)(4)(D)(lix) shows that Congress explicitly
sought to exclude Cruz, and those similarly situated. Put another way, Cruz does not have a protected interest in the good time
credit. See Cheng, 132 F.4th at 659 (Rejecting the petitioner's due process argument because “the FSA, taken as a whole, makes
clear that noncitizens with final orders of removal are not eligible for time credits.”). So Cruz's petition should be denied.
* * *
To end, the Court recommends denying Cruz's petition. The Government has shown that Cruz failed to exhaust the administrative
remedies available to him. And that is enough for the District Court to deny Cruz's petition. But should the Court disagree and
determine that Cruz exhausted the administrative remedies available to him, this Court recommends denying Cruz's petition on
the merits because he was convicted under §§ 1326(a) and 1326(b)(2), and he has a final order of removal.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED that the Clerk provide Plaintiff with copies of the unpublished decisions cited herein in accordance with Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam), and it is further
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 45 of 48

Cruz v. Rickard, Slip Copy (2025)
2025 WL 2722424
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
*4 RECOMMENDED, that the petition be DENIED and DISMISSED, and it is further;
RECOMMENDED, that a certificate of appealability be DENIED.
Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to
the foregoing report. These objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993) (citing Small v. Secretary of HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
All Citations
Slip Copy, 2025 WL 2722424
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 46 of 48

Cruz v. Richard, Slip Copy (2025)
2025 WL 2719863
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2719863
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Francis Alberto Hilario Dela CRUZ, Petitioner,
v.
RICHARD, Warden, Respondent.
9:23-CV-0407 (GTS/MJK)
|
Signed September 24, 2025
Attorneys and Law Firms
FRANCIS ALBERTO HILARIO DELA CRUZ, No. 60563-054, Petitioner, Pro Se, Federal Correctional Institution (FCI)
Thomson, P.O. Box 1002, Thomson, Illinois 61285
OFFICE OF THE UNITED STATES ATTORNEY, Counsel for Respondent, CARL G. EURENIUS, ESQ., Assistant U.S.
Attorney, Office of the U.S. Attorney, P.O. Box 7198, Syracuse, New York 13261.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Francis Alberto Hilario Dela Cruz (“Petitioner”) filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
on March 31, 2023. (Dkt. No. 1.) By Report-Recommendation dated July 29, 2025, the Honorable Mitchell J. Katz, United
States Magistrate Judge, recommended that the Petition be denied and dismissed, and that a certificate of appealability be denied
pursuant to 28 U.S.C. § 2253(c)(2). (Dkt. No. 16.) Petitioner has not filed an objection to the Report-Recommendation, and the
time in which to do so has expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein, including Magistrate Judge Katz's thorough Report-Recommendation, the
Court can find no clear-error in the Report-Recommendation: Magistrate Judge Katz employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted
in its entirety for the reasons set forth therein, Petitioner's Petition is denied and dismissed, and a Certificate of Appealability
is denied.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Katz's Report-Recommendation (Dkt. No. 16) is ACCEPTED and ADOPTED in its
entirety; and it is further
ORDERED that Petitioner's Petition for a Writ of Habeas Corpus (Dkt. No. 1) is DENIED and DISMISSED; and it is further
ORDERED that a Certificate of Appealability is DENIED because Petitioner has not made a “substantial showing of the denial
of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2).
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 47 of 48

Cruz v. Richard, Slip Copy (2025)
2025 WL 2719863
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
All Citations
Slip Copy, 2025 WL 2719863
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00341-GTS-DJS Document 12 Filed 11/12/25 Page 48 of 48