FINDINGS AND RECOMMENDATIONS
Petitioner Augustine Olivo is a federal inmate proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Olivo challenges the Bureau of Prisons ("BOP") refusal to "consider inmates for immediate placement into a Residential Re-entry Center ("RRC") pursuant to the factors listed under 18 U.S.C. 3621(b). . . ." Petition at 2. Upon careful consideration of the record and the applicable law, the undersigned will recommend that this petition for habeas corpus relief be denied.
Olivo filed this petition on March 26, 2007, in the United States District Court for the Southern District of Mississippi at Jackson. Shortly there after petitioner was transferred to FCI Herlong, which is within the Sacramento Division of the Eastern District of California. On November 13, 2007, the matter was transferred to this court. On December 10, 2007, respondents were ordered to file an answer. Respondents however filed a motion to dismiss on January 9, 2008, arguing that the petition was premature because of the Ninth Circuit's pending decision in Rodriguez v. Smith. Olivo did not file an opposition and the motion to dismiss was granted on September 16, 2008.
On October 1, 2008, Olivo filed a motion for reconsideration arguing that at the time the District Judge ordered the dismissal, the Ninth Circuit had already issued a published opinion in Rodriguez v. Smith. See Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008). On January 29, 2009, the District Judge referred the motion for reconsideration to the previously assigned Magistrate Judge for further findings and recommendations in light of the opinion in Rodriguez. On April 3, 2009, the Magistrate Judge ordered respondents to "provide a response to petitioner's contention that his petition should proceed because the respondents have failed to honor the Ninth Circuit's decision in Rodriguez."
On May 5, 2008, respondents filed an answer. This matter was then reassigned from the previous Magistrate Judge to the undersigned on August 13, 2009.
III. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
Habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. 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 his sentence and not the fact of his 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).
Petitioner is challenging the execution of his sentence at the Federal Correctional Institution in Herlong, California, which is within the Sacramento 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).
IV. DISCUSSION OF PETITIONER'S CLAIM
Olivo states that his petition "challenges the legality . . . of [the BOP's] interpretation of CFR 570.20 and CFR 570.21" and argues that the BOP has used these code sections to "categorically deny all inmates regardless of circumstances, placement into [an RRC] until the last 6 months or 10% of their sentence whichever is less." Petition at 1. He argues that this policy is unlawful and that "if considered in good faith under the factors articulated in 18 U.S.C. 3621(b), [Olivo] should be immediately considered for placement into [an] RRC facility." Memorandum in Support of Petition at 1. In his motion for reconsideration Olivo also argues that "there is no indication that respondents will honor the Ninth Circuit's decision in Rodriguez. . . ." and asks that respondents be ordered "to evaluate Olivo for transfer to an RRC . . . without reference to . . . 28 C.F.R. §§ 570.20 and 570.21. . . ." Motion for Reconsideration at 2.
The BOP has the authority, under 18 U.S.C. § 3261(b), to designate the location of an inmate's imprisonment. The BOP's policy prior to December 13, 2002, was to exercise its discretion in allowing prisoners to serve part or all of their imprisonment in an RRC. Rodriguez, 541 F.3d at 1182. The Department of Justice Office of Legal Counsel ended that practice by issuing a legal opinion that § 3621(b) did ...