The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER CONSTRUING RESPONDENT'S MOTION TO DISMISS AS ANSWER TO PETITION, DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT
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. 6, 11.)
On August 27, 2004, Petitioner was sentenced on state drug charges in Riverside County Superior Court (Case No. F1F11039) to seventy-six (76) months in state prison. On April 9, 2007, Petitioner was sentenced by the United States District Court for the Central District of California to one hundred and twenty (120) months in prison for conspiracy to possess methamphetamine with the intent to distribute and distribution of methamphetamine in violation of 21 U.S.C. § 846 and use of a firearm during drug trafficking in violation of 18 U.S.C. § 924(c). Petitioner received sixty month terms on each charge, which were ordered to be served consecutively with each other, but concurrently with the undischarged term of imprisonment imposed in Riverside County Superior Court, Case No. R1F11039. (Exhibit B, Declaration of Cheryl Lane.)
Petitioner filed the instant petition for writ of habeas corpus on September 19,2008. Petitioner contends that his federal sentence has been improperly computed because he did not receive credit for the time spent in pre-sentence custody while incarcerated in Riverside County on his state sentence. Petitioner claims that he is entitled to credit for the time he served on the state sentence before the federal sentence was imposed (i.e. August 27, 2004 through April 8, 2007).
Respondent filed a motion to dismiss the petition on May 12, 2009. (Court Doc. 14.) 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. 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, Petitioner is challenging the execution of his sentence at the Taft Correctional Institution in Taft, California, which is within the Fresno Division of the Eastern District of California; therefore, the Court has jurisdiction over this petition. See Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
As an initial matter, Respondent has filed a motion to dismiss the petition under Rule 12(b)(6) of the Federal Rules of Civil Procedure. However, because Respondent has presented and this Court must consider documents outside of the petition, a motion under 12(b)(6) cannot be entertained, and the Court therefore construes Respondent's motion as an answer addressing the merits of the petition. See cf. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996) (A motion to dismiss under Fed.R.Civ.P. 12(b)(6) must be treated as a motion for summary judgment "if either party to the motion to dismiss submits materials outside the pleadings in support or opposition of the motion, and if the district court relies on those materials.")