The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (DOC. 13) AND DISMISSING THE ACTION WITHOUT PREJUDICE ORDER DIRECTING THE CLERK TO ENTER JUDGMENT AND CLOSE THE CASE
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 the parties' consent,*fn1 the matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73(b), and Local Rule 73-301. Pending before the Court is Respondent's motion to dismiss the action.
On May 8, 2009, Petitioner filed a petition for writ of habeas corpus in which he challenged the execution of his sentence pursuant to 28 U.S.C. § 2241. (Pet. p. 1.)*fn2 Petitioner alleged that the Bureau of Prisons (BOP) denied his request of February 26, 2009, for a transfer to a residential re-entry center (RRC) because Petitioner was not yet serving the last six (6) months, or last ten (10) percent, of his sentence. Petitioner alleged that the denial was improper because it conflicted with 18 U.S.C. § 3621, which permitted transfer at any point in a prisoner's sentence. He also alleged that it was invalid under standards of review set forth in the Administrative Procedure Act (APA) that require consideration of the relevant factors set forth in § 3621(b) in the exercise of discretion to determine placement of a prisoner. (Pet. pp. 1-5.)*fn3
Petitioner relies on the decision in Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008), in which the court determined that regulations of the BOP (28 C.F.R. §§ 570.20 and 570.21) that purported categorically to exclude consideration of prisoners for placement in RRC's for more than the last six (6) months of their sentences were contrary to the Congressional intent expressed in 18 U.S.C. § 3621(b), which provided for individualized consideration of transfer and exercise of administrative discretion based on specified factors. The Court in Rodriguez affirmed the district court's grant of a writ of habeas corpus ordering the BOP promptly to consider the prisoner for transfer to an RRC with reference to the factors specified in § 3621(b). 541 F.3d at 1189. This is essentially the relief sought by Petitioner here. (Pet p. 5.)
In response to the petition, Respondent served by mail on Petitioner and filed on December 15, 2009, a motion to dismiss the action. Petitioner did not file an opposition to the motion. Respondent seeks dismissal of the petition for lack of standing and absence of a liberty interest; mootness; inapplicability of the APA; and Petitioner's failure to exhaust administrative remedies.
Petitioner is serving a sentence of one hundred and ten (110) months imposed in the Western District of Michigan on February 22, 2005, for being a felon in possession of a firearm (18 U.S.C. § 922(g)), and twelve months for possession of cocaine base (21 U.S.C. § 844). His projected release date is July 13, 2012. (Decl. Orozco, ¶ 3, doc. 13-2, pp. 26-29.)
Petitioner was incarcerated in the United States Penitentiary in Atwater, California (USP Atwater) from February 7, 2007, through May 21, 2009. He was then transferred to the Federal Correctional Institution at Herlong (FCI Herlong), a medium security facility, where he is presently designated. (Decl. and cert. of records by Jesse Gonzalez, Executive Assistant/Litigation Coordinator, Atwater, California, doc. 13-2, pp. 2-3.)
With respect to Petitioner's claim concerning the failure of the BOP to afford him the consideration mandated by § 3621, Petitioner filed a request for administrative remedy on or about March 17, 2009, concerning a transfer to a RRC for successful reintegration. (Gonzalez decl. ¶ 4, att. 1, doc. 13-2, pp. 10-11.) The warden responded on April 1, 2009, explaining that the factors identified in 18 U.S.C. § 3621(b) would be considered at a later date at a pre-release review, and denying the request. (Id. p. 12.) Petitioner sought review by the western regional director, who construed Petitioner's request as one seeking a routine transfer to a RRC (as distinct from a pre-release transfer) and remanded the matter to the warden to address the request. (Id. pp. 13-18.) Petitioner was advised that if he was dissatisfied with the response, he could appeal to the office of the general counsel at a specified address within thirty (30) calendar days. (Id. p. 18.) Petitioner did not appeal the regional director's decision to remand the matter to the warden to address the request as one for a routine transfer. (Decl. Gonzalez, ¶ 4.)
On June 1, 2009, the warden reconsidered Petitioner's request for a routine transfer to a RRC. The warden again denied the requested relief. The warden found no extraordinary or compelling re-entry needs, although Petitioner had prepared for release financially, had completed the release preparation program, had maintained clear institutional conduct since May 2008, and had been transferred to a medium security institution. Petitioner was again advised of his right to appeal that decision and did not appeal. (Id.; doc. 13-2 p. 19.) Although Petitioner was transferred to FCI Herlong on May 21, 2009, he remained incarcerated in facilities with the western region of the BOP, and thus the pertinent database would have reflected all administrative grievances filed by Petitioner while incarcerated. (Id. at ¶ 5.) The case manager at FCI Herlong stated that the pertinent database revealed that Petitioner had not filed any requests for transfer since arriving at FCI Herlong. (Decl. Orozco, ¶ 5.)
In addition, the pertinent records contain no indication that Plaintiff requested a transfer at the team meeting held on February 5, 2009, at USP Atwater. (Decl. Orozco, ¶ 4.) Subsequently, BOP staff determined that Plaintiff's security level could be changed from high to medium, and on April 1, 2009, the institution itself requested a transfer for Plaintiff, resulting in his transfer beginning May 28, 2009. (Id.) In June 2009, a program review of Petitioner's case was held, but Petitioner did not request a transfer at that time despite the discussion of later evaluation for RRC placement. (Id. ¶ 5.)
Title 28 U.S.C. § 2241 provides that writs of habeas corpus may be granted by a district court within its jurisdiction only to a prisoner whose custody is within enumerated categories, including but not limited to custody under the authority of the United States or custody in violation of the ...