The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner is currently incarcerated at the Taft Correctional Institution in Taft, California, serving a 96-month term of imprisonment following his conviction for Conspiracy to Defraud the United States in violation of 18 U.S.C. § 371 and Corrupt Endeavor to Interfere with Administration of Internal Revenue laws in violation of 26 U.S.C. § 7212(a). See Answer, Attachment 1, Judgment and Commitment Order.
Petitioner filed the instant petition for writ of habeas corpus on October 23, 2008, and contends that he is entitled to immediate consideration for transfer to a Residential Re-Entry Center ("RRC"). Respondent filed an answer to the petition on April 6, 2009. (Court Doc. 16.) Petitioner filed a traverse on April 20, 2009. (Court Doc. 17.)
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 (2d 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 in the custody of the Taft Correctional Institution in Taft, 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." In sentence computation cases, a defendant must "commence serving his sentence and exhaust his administrative remedies before he can petition for judicial review of the denial of credit for time served in custody." United States v. Checchini, 967 F.2d 348, 350 (9th Cir. 1992).
Respondent argues that petition should be dismissed for Petitioner's failure to exhaust all available administrative remedies. Although in his petition, Petitioner admitted that he did not make a effort to exhaust the administrative remedies because he believed it would be futile, in his traverse Petitioner points out that he has made several efforts to administrative exhaust his claim(s). Petitioner submits a copies of a "TCI Inmate Request to Staff" dated March 2, 2009, "TCI Inmate Request to Staff" dated March 4, 2009", Request for Administrative Remedy at Informal level dated March 12, 2009, and Request for Administrative Relief to Warden. (Unenumerated Attachments to Traverse.) Based on Petitioner's efforts to seek administrative relief and the responses he received thereto, the Court finds that Petitioner's failure to completely exhaust the administrative remedies shall be excused in this instance.
There are two statutory basis to transfer an inmate to an RRC to serve the remainder of his term. Under 18 U.S.C. § 3621(b), the BOP has the discretionary authority to transfer an inmate to any available penal or correctional facility at any time, prior to an inmate's pre-release RRC placement. See also Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008). However, under 18 U.S.C. § 3624(c), the BOP must consider an inmate for pre-release transfer to an RRC for up to the final twelve months of his sentence, pursuant to the Second Chance Act of 2007, Pub. L. No. 110-19.
Because an inmate is legally eligible to be transferred to an RRC at any time during their sentence, on November 14, 2008, the BOP issued guidance to staff for considering and responding to inmate requests for routine transfer to RRC's. (Answer, Attachment 4, November 14, 2008, Kathleen M. Kenney, Assistant Director/General Counsel, and Joyce K. Conley, Assistant Director/Correctional Programs Division, Memorandum, "Inmate Requests for Transfer to Residential Re-entry Centers" (hereinafter referred to as "Routine RRC Transfer Guidance")). When considering a transfer, "prior to the pre-release time frame of 12-months from release, staff must individually consider the request, just as they would any other request for lower security transfer." Id. at 1-2. In rendering its decision, staff must utilize the five factors outlined in § 3621(b), and staff "cannot, therefore, automatically deny an inmate's request for transfer to an RRC. Rather, inmate requests for RRC placement must receive ...