The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE, AND DIRECTING CLERK OF COURT TO TERMINATE ACTION [Doc. 11]
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. (Court Docs. 3, 13.)
Petitioner is currently incarcerated at Taft Correctional Institution (TCI) in Taft, California, pursuant to a conviction arising out of the United States District Court for the Southern District of Florida for conspiracy to commit Hobbs Act robbery and possession of a firearm in furtherance of a crime of violence. He was sentenced to 106 months in prison and ordered to pay $200.00 in assessments and $246,168.00 in total restitution. (Exhibit B, attached to Motion.) The abstract of judgment issued by the sentencing court outlined Petitioner's restitution payment schedule and stated, "these payments do not preclude the government from using other assets or income of the defendant to satisfy the restitution obligations." (Id.)
Upon arrival at the TCI, Petitioner entered into the Inmate Financial Responsibility Program (IFRP). Petitioner's IFRP contract executed on April 22, 2008 specifies that he is to pay $50.00 quarterly, in satisfaction of his fines, beginning on June 9, 2008. (Exhibit C, attached to Motion.)
Petitioner filed the instant petition for writ of habeas corpus on August 11, 2008. (Court Doc. 1.) Respondent filed the instant motion to dismiss on December 12, 2008. (Court Doc. 11.) Petitioner did not file a response.
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or constitutionality of his conviction must bring a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See e.g., Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). To receive relief under 28 U.S.C. § 2241 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not necessarily unconstitutional, manner. See e.g. Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 1995) (contending time spent in state custody should be credited toward federal custody); Jalili, 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parole). A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown, 610 F.2d at 677. Petitioner is currently in the custody of the Taft Correctional Institute, in California, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
II. Exhaustion Administrative Remedies
Before filing a petition for writ of habeas corpus, a federal prisoner challenging any circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Thus, "because exhaustion is not required by statute, it is not jurisdictional." Id. If Petitioner has not properly exhausted his claims, the district court, in its discretion, may either "excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his administrative remedies before proceeding in court."
Respondent does not address whether Petitioner has exhausted the administrative remedies. However, even assuming Petitioner has not exhausted his remedies, the Court finds that, in this instance, exhaustion shall be excused, as it appears it would have been futile because the claims in all likelihood would have been rejected. Futility is an exception to the exhaustion requirement. Laing v. Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2004), citing S.E.C. v. G.C. George Sec., Inc., 637 F.2d 685, 688 n.4 (9th Cir. 1981) ("exceptions to the general rule requiring exhaustion cover situations such as where administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void.") As such, the Court will reach the merits of Petitioner's claims.
III. Constitutionality of Financial Responsibility Program
Petitioner contends that the Bureau of Prisons (BOP) has arbitrarily increased his restitution payments and he requests relief from such ...