The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER 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. 3, 4.)
On August 4, 2005, Petitioner was sentenced to a term of 84-months imprisonment and a 3-year term of supervised release in the United States District Court Western District of Missouri. The District Judge ordered the federal sentence to "run consecutive with any term of imprisonment, pursuant to any judgment the defendant receives in Clay County, Missouri, Circuit Court Case CR1043286F." In addition, the court imposed the sentence to run "concurrently with any term of imprisonment pursuant to any judgment the defendant receives in Clay County, Missouri, Circuit Court Case No. 104-3112F and CR104-3309F." See Flagg Declaration ¶3b, Attachment 3.
On September 19, 2005, Petitioner was sentenced in Clay County, Missouri, Circuit Court to a 5-year concurrent term in each case no. CR104-3286F and CR104-3309F. Id. at ¶3c, Attachment 2.
Petitioner filed the instant petition for writ of habeas corpus on January 8, 2009, and challenges the sentence computation by the Bureau of Prisons ("BOP") as to the sentence imposed in the Western District of Missouri, in matter 04-031-01CR-W-ODS, for a conviction of 18 U.S.C. section 922(g)(1) and 924(A)(2), Felon in Possession of Ammunition. More specifically, Petitioner claims that he is entitled to receive credit on his federal sentence from October 6, 2004, to the date of commencement of his federal sentence on September 6, 2006, and his federal sentence should have run as a concurrent designation to his later sentence imposed by the Missouri state court.
Respondent filed an answer to the petition on May 23, 2009. (Court Doc. 10.) Petitioner did not file a traverse.
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 United States Penitentiary in Atwater, 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).
A. Exhaustion of 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 ...