The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [Doc. #13]
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS [Doc. #1]
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner was sentenced to 168 months in federal prison after he was convicted of possession of crack cocaine with the intent to distribute. (Pet. at 2).
Petitioner is scheduled to spend his last six months of imprisonment at a Residential Re-Entry Center (RRC)*fn1 pursuant to 18 U.S.C. § 3624(c).
On September 9, 2008, Petitioner filed a petition for writ of habeas corpus with the United States District Court seeking to be placed in an RRC for a period longer than six months.
(Pet. at 3; Mot. to Dismiss at 1). On December 29, 2008, Respondent filed a motion to dismiss claiming that the Court lacks subject matter jurisdiction to review the case and that Petitioner failed to exhaust administrative remedies. (Doc. #13). On February 11, 2009, Petitioner filed a traverse to the motion to dismiss. (Doc. #15). It is Respondent's motion to dismiss that will be considered herein.
As it is determinative in this case, the Court must first decide the threshold issue of whether there is subject matter jurisdiction to review Petitioner's habeas petition.
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 claims that the Bureau of Prisons (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. Examples of appropriate challenges to duration of confinement include challenges to denial of parole or loss of good time credits. Brown v. U.S., 610 F.2d 672, 677 (9th Cir. 1980) (citing Tedder v. United States Board of Parole, 527 F.2d 593, 594 n.1 (9th Cir. 1975)) ("A petition under 28 U.S.C. § 2241 is the proper form of proceeding from obtaining review of parole decisions.); Preiser, 411 U.S. at 500; see also Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990) (noting if a constitutional violation has resulted in the loss of time credits, such violation affects the duration of a sentence, and the violation may be remedied by way of a petition for writ of habeas corpus.) Challenges that are not appropriately brought under habeas include the transfer of individual prisoners from one location to another within the prison. Toussaint v. McCarthy, 801 F.2d 1080, 1103 (9th Cir. 1986) (prisoner release from administrative segregation is not a form of relief that falls "within the traditional core of habeas corpus.") In cases where petitioner is challenging his parole decision or loss of good time credits, Petitioner is directly challenging the duration of which he will be in custody of the BOP. In the event of a grant of writ of habeas corpus under either of those scenarios, Petitioner will be released from the custody of the BOP sooner than if the petition had not been granted. However, if a prisoner was granted relief from administrative segregation, he would not be released from the custody of the BOP, he would merely be moved to a more desirable location under the BOP's control.
The Ninth Circuit has clarified that release to an RRC is not a release from incarceration because the prisoner is still in the custody of the BOP. See United States v. Miller, 547 F.3d 1207 (9th Cir. 2008) (holding that a federal prisoner's placement in a work release program did not trigger his date of supervisory release because he was still in the custody of the BOP). See also United States v. Lemoine, 546 F.3d 1042, 1046 n.2 (9th Cir. 2008) ("Although RRCs are independently operated, [prisoner] remains in federal custody and subject to the BOP's authority.") Accordingly, the time during which Petitioner is in custody of the BOP will not end any sooner regardless of whether he spends twelve months at an RRC instead of only six. Transfer to an RRC will not affect the fact or duration of Petitioner's confinement, thus, his ...