ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is an inmate with the California Department of Corrections and Rehabilitation (CDCR (formerly CDC)), proceeding with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner initially challenged his confinement with CDCR through a complaint alleging violations of the Civil Rights Act, 42 U.S.C. § 1983. However, on April 25, 2007, the court sua sponte ordered that the action be re-designated as one for writ of habeas corpus under the Anti-terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. See Docket No. 11. The court also granted petitioner's request to proceed in forma pauperis and appointed him counsel. Id. Now before the court are respondents' motion to dismiss the second amended habeas petition, petitioner's motion for leave to file a third amended petition, and respondents' motion to dismiss the third (and as yet unfiled) amended petition.
In 1984, the Superior Court of Orange County adjudged petitioner not guilty of certain sex offenses by reason of insanity and committed him to the custody of the California Department of Mental Health (DMH) for a maximum term of eighty-one years. In 1996, the Superior Court found that petitioner "presents a high escape risk and a danger to others" and concurred with DMH's recommendation that he be transferred to the custody of CDCR pursuant to California Welfare and Institutions Code § 7301. See First Am. Pet., Ex. G*fn1 (Docket No. 25). That statute states that an inmate at a state hospital may be transferred to CDCR if he "needs care and treatment under conditions of custodial security which can be better provided within the Department of Corrections...." The statute also requires "the approval of the Director of Corrections" to effect the transfer of an inmate from DMH to CDCR. The statute is silent on the process by which an inmate would be transferred back to the custody of DMH.
By letter to the Director of DMH, dated November 20, 1997, the Director of CDCR agreed to accept custody of petitioner and another state hospital inmate. That letter also stated that "[i]f, in the future, CDCR custodial and clinical staff determine that care and treatment under the conditions of custodial security provided by CDC are no longer needed, CDC will initiate return of the individuals to a DMH facility." First Am. Pet., Ex. M (Docket No. 26). Since then, CDCR has found that petitioner no longer presents an escape risk and has recommended several times that he be returned to DMH. Id., Ex. N. However, DMH has written to CDCR that it still regards petitioner as an unacceptable flight risk and has no intention of accepting him back into its custody until 2065, "when his CDC time expires." Id., Ex. O; see also id., Ex. N at 28, 31.
II. Procedural Background
Since converting this case to one under § 2254, the court has granted petitioner leave to file amended petitions on two occasions. The second amended petition, which is currently before the court, alleges three claims: (1) that petitioner's right to due process was violated by his transfer from DMH without notice or an opportunity to be heard and by the "continuing refusal by DMH to accept petitioner's return as a patient at DMH, and the lack of any opportunity for petitioner to have a hearing on the issue;" (2) that petitioner's right to equal protection is violated by the lack of access to outpatient services while in the custody of CDCR;*fn2 and (3) that petitioner's right to due process is violated by the lack of adequate mental health treatment at CDCR. See Second Am. Pet. (Docket No. 38). Petitioner ultimately seeks an order that he "be discharged from his unconstitutional confinement at CDC and returned to DMH." Id. at 12.
Respondents have moved to dismiss the second amended petition, arguing that its claims are unexhausted and untimely. See Mot. to Dismiss (Docket No. 41). Petitioner has responded to the motion to dismiss with a motion for leave to file a third amended petition. Petitioner points out that the proposed petition asserts "the very same claims ... as pled in the first and second amended petitions...." Mot. to Amend at 1 (Docket No. 44). The only difference is that the proposed third petition invokes the general habeas statute, 28 U.S.C. § 2241, in lieu of § 2254. Petitioner explains:
[P]petitioner only is amending to allege his constitutional violations as conditions of confinement under 28 U.S.C. § 2241 in response to Respondent's continuing efforts to block petitioner from relief by procedural hurdles. Neither DMH nor CDC has shown any inclination to proceed with an annual review of petitioner's status.... 28 U.S.C. § 2241 does not have a comparable statute of limitations as found under section 2254, so that petitioner can proceed with the merits of his claims of constitutional violations rather than continue to litigate the procedural barriers to relief.
The parties presented their arguments on timeliness and administrative exhaustion when the motion to dismiss the second amended complaint came on for hearing on July 1, 2009. The next day, petitioner filed a Form 602 administrative appeal with CDCR. In it he demanded essentially the same relief he seeks here: (1) return to DMH; (2) a hearing on his request to be returned to DMH;*fn3 and (3) access to CONREP as long as he is still a prisoner with CDCR. See Pet'r's Updated Info. (Docket No. 52) at 4. All of those requests were denied, but the second level response, dated September 29, 2009, stated that CDCR would again recommend his return to DMH in October 2009. Id. at 6-7.*fn4
Respondents have moved to dismiss the proposed third amended petition even though the court has not granted leave to file it. See Docket No. 49. Because the third amended complaint has not been accepted by the court, the motion to dismiss is premature and should therefore be denied.
A. The Motion to File a Third Amended Petition
The motion to file a third amended petition, submitted for the sole purpose of avoiding the procedural requirements of § 2254 in favor of the less restrictive § 2241, is not well taken. The Ninth Circuit has stated that "when a state prisoner begins in the district court, § 2254 and all associated statutory requirements apply no matter what statutory label the prisoner has given the case." White v. Lambert, 370 F.3d 1002, 1007 (9th Cir. 2004) (interpreting Felker v. Turpin, 518 U.S. 651 (1996)). White addressed a challenge under § 2241 by a prisoner who had been convicted in Washington state court but was subsequently transferred from a Washington state prison to a privately run prison in Colorado. The court found that § 2254 was the exclusive jurisdictional basis for challenging the transfer. The key inquiry, according to White, is whether at the time [petitioner] filed his habeas petition he was "in custody pursuant to a state court ...