The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge
MEMORANDUM OPINION AND ORDER RE MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [Doc. 9]
Petitioner is a federal prisoner proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. Section 2241. Pursuant to Title 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.
Petitioner is a federal inmate housed at the Taft Correctional Institution ("TCI"). In his petition, Petitioner alleges that his due process rights were violated in connection with charges brought against him for possession of a weapon and unauthorized narcotics while incarcerated at TCI.
It is undisputed that on September 21, 2007, Officer G. Floyd was assigned to search the locker of Petitioner. According to the relevant incident report, during his search, Officer Floyd discovered an unidentified red and yellow capsule and a pair of scissors that was separated with homemade handles at each end. The medical department was contacted and confirmed that Petitioner was not prescribed the confiscated capsule. Petitioner was cited with violating BOP Policy Statement 5270.07, Prohibited Acts Codes 104 and 113.*fn1 At the October 4, 2007 disciplinary hearing, the presiding Disciplinary Hearing Officer determined that based on the evidence, Petitioner was guilty of violating Prohibited Acts Codes 104 and 113.
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Petitioner's claims are proper under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or conditions of the execution of Petitioner's sentence and not the fact of Petitioner's conviction or sentence. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir.1990) (stating that a challenge to the execution of a sentence is "maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241"); Montano-Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir.1998) (per curiam) (allowing a federal prisoner to use § 2241 to challenge the BOP's restitution policies).
Further, because Petitioner is challenging the execution of his sentence at Taft Correctional Institution and Taft is within the Eastern District of California, Fresno Division, the court has jurisdiction over this petition. See, Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
Petitioner makes two allegations, claiming in regard to both charges that he was charged with a crime that he did not commit. In regard to BOP Prohibited Acts Code 104, Petitioner contends that he did not possess, manufacture, introduce a gun, firearm, weapon, sharpened instrument, knife, dangerous chemical, explosive or any ammunition as prohibited by Code 104. Instead, he claims that he merely possessed scissors purchased from the commissary. He argues that he would not have been able to purchase the scissors from the commissary if they were considered a weapon.
In regard to BOP Prohibited Acts Code 113, Petitioner contends that he was not in "possession of any narcotics, marijuana, drugs, or related paraphernalia not prescribed for the individual by the medical staff" as prohibited by Code 113. Instead he asserts that he possessed only "one capsule" of "medication," not drugs or narcotics.
Respondent moves to dismiss this petition pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, on the ground that Petitioner has failed to state a claim for which the court can grant relief. Petitioner opposes the motion.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the Petitioner is not entitled to relief in the district court . . . ." The Advisory Committee Notes to Rule 5 of the Rules Governing § 2254 Cases state that "an alleged failure to exhaust state remedies may be raised by the Attorney General, thus avoiding the necessity of a formal answer as to that ground." The Ninth Circuit has referred to a respondent's motion to dismiss as a request for the court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (1991); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989); Hillery v. Pulley, ...