The opinion of the court was delivered by: Sandra M. Snyder 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.
On November 5, 2003, Petitioner was arrested by Utah State Police for evading police. The Ogden County Police Department subsequently executed a search warrant of Petitioner's residence and found illegal drugs and firearms. On December 17, 2003, Petitioner was sentenced to one year in Webber County Jail on the state charges. See Exhibit A, attached to Motion. The state sentencing judge's Order stated that Petitioner may be released to the Federal Government and serve his state sentence concurrent with any federal sentence. Exhibit B, attached to Motion.
On December 18, 2003, Petitioner was borrowed from state custody on a federal writ to face federal charges in the United States District Court. On May 12, 2004, Petitioner was sentenced to eighty-seven (87) months on the federal charges. The judgment did not indicate whether Petitioner's sentences could run concurrently with one another. On May 17, 2004, Petitioner was returned to state custody to serve the remainder of his state sentence. On August 25, 2004, the state court conducted a sentence review hearing, and it was determined that he had completed his state sentence and could be released to federal custody. Therefore, on that same date, he was released to federal custody to begin serving his federal sentence.
Petitioner filed the instant petition for writ of habeas corpus on April 27, 2009, and contends that his federal sentence has been improperly calculated. He specifically contends that he did not receive credits toward his federal sentence for his time spent in pre-sentence state custody while incarcerated at Weber County Jail, i.e. from December 17, 2003 through August 24, 2004.
Respondent filed a response to the petition on July 1, 2009. (Court Doc. 8.) Petitioner did not file an opposition.
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 ...