The opinion of the court was delivered by: Gary S. Austin 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.
On May 23, 2000, Petitioner was sentenced in the United States District Court for the Middle District of Pennsylvania to a term of 135 months of incarceration, for violations of 21 U.S.C. §§ 843(a)(4)(B), 841(g)(1), 846. See Attachment 1 to Answer, Public Inmate Information Data. Petitioner has a projected release date, via good conduct time release, of December 20, 2009. Id.
Petitioner filed the instant federal petition for writ of habeas corpus on October 10, 2008. He contends that the Bureau of Prisons ("BOP") has improperly refused to consider him for up to twelve months pre-release placement in an Residential Re-Entry Center ("RRC") pursuant to 18 U.S.C. §§ 3624(c), 3621(b). He asks that the Court order the BOP to transfer him to an RRC for the full twelve months authorized under the Second Chance Act of 2007. He also asks for an immediate evaluation for transfer to an RRC.
Respondent filed an answer to the petition on March 24, 2009. Petitioner did not file a traverse.
I. Subject Matter Jurisdiction
Respondent argues that the petition should be dismissed because this Court lacks subject matter jurisdiction. Respondent also argues that Petitioner failed to exhaust the administrative remedies and that the petition fails to state a cognizable claim. As it is determinative in this case, the Court will recommend dismissal based on the threshold issue of whether there is subject matter jurisdiction to review Petitioner's challenge.
A federal court may only grant a petition for writ of habeas corpus if the federal petitioner can demonstrate that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(a), (c)(3). A habeas corpus petition is the correct method for a prisoner to challenge "the very fact or duration of his confinement," and where "the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment." Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Any deprivation that does not affect the fact or duration of a prisoner's overall confinement is necessarily a condition of that confinement. Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999). In other words, if a successful conditions of confinement challenge would not necessarily shorten the prisoner's sentence, then § 1983 is the appropriate vehicle. See Wilkinson v. Dotson, 544 U.S. 74 (2005). In the federal context, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), provides petitioners with a remedy for violation of civil rights by federal actors. C.f., Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (challenges to conditions of confinement by state prisoners should be presented in a 42 U.S.C. § 1983 civil rights action rather than a habeas corpus petition).
In the instant petition, Petitioner's claims that the BOP has failed to properly consider him for transfer to an RRC for the full twelve months as provided in 18 U.S.C. § 3624(c) as amended by the Second Chance Act of 2007, Pub. L. No. 110-199. Respondent correctly argues that this claim does not challenge the fact or duration of Petitioner's sentence. The Ninth Circuit has clarified that release to an RRC is not a release from incarceration. Rodriguez v. Smith, 541 F.3d 1180 (9th Cir.2008). Therefore, a transfer to an RRC will not affect the fact or duration of his confinement, and therefore does not give rise to a claim for which habeas relief can be granted. Accordingly, this Court does not have subject matter to review the instant challenge under section 2241, and the petition must be dismissed.*fn1
II. BOP Policy Is Consistent With Second Chance Act
Even if the Court has subject matter jurisdiction to review the instant habeas petition, the claims presented are without merit.
18 U.S.C. § 3624(c)(1), as recently amended by the Second Chance Act, provides: The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the ...