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 WITH 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 January 14, 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) arbitrarily and capriciously denied him individualized consideration for placement at a residential re-entry center (RRC) for twelve (12) months, pursuant to the Second Chance Act (SCA) of 2007; violated the Administrative Procedures Act (APA) by improper publication of, or failure to publish, a substantive rule and by failing to publish, post, and make available to the inmate population all changes in the law under the SCA; and failed to invoke the so-called good cause exception pursuant to 5 U.S.C. §§ 706, 533(d). (Pet. pp. 1, 8-9.) Petitioner alleged that the unit team at his institution of confinement limited all RRC placement to no more than six (6) months of an inmate's total sentence. He argues that this was contrary to the SCA's provision for twelve (12) months, and in violation of 18 U.S.C. §§ 3621(b) and 3624(c) and 28 C.F.R. §§ 570.20, 570.21. (Id. p. 9, 11-12.)
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 clearly expressed in 18 U.S.C. § 3621(b), which provided for individualized consideration and exercise of administrative discretion based on specified factors. Petitioner here seeks the very same relief as that affirmed by the court in Rodriguez, namely, a writ of habeas corpus ordering the BOP promptly to consider the prisoner for transfer to an RRC pursuant to the criteria set forth in 18 U.S.C. § 3621 and without reference to invalid regulations. 541 F.3d at 1189.
In response to the petition, Respondent served by mail on Petitioner and filed on December 8, 2009, a motion to dismiss. Petitioner did not file an opposition to the motion. Respondent seeks dismissal of the petition for lack of subject matter jurisdiction, mootness, failure to exhaust administrative remedies, and lack of standing.
Petitioner is housed at the federal prison camp located in Atwater, California and is serving a sentence of ninety-six (96) months to be followed by period of five (5) years of supervised release pursuant to his conviction after a guilty plea of violating 21 U.S.C. §§ 846 and 841 (conspiracy to possess methamphetamine with intent to distribute). (Pet. pp. 3, 7; Decl. Leticia Ortiz ¶ 2.) He was sentenced in August 2008 and is scheduled to be released on August 7, 2015. (Pet p. 3; Decl. Ortiz ¶ 2.)
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 and custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(a),(c)(1),(3).
A district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases (Rule 4) is applicable to proceedings brought pursuant to § 2241. Rule 1(b) of the Rules Governing Section 2254 Cases. Rule 4 permits the filing of "an answer, motion, or other response" and thus authorizes the filing of a motion in lieu of an answer in response to a petition. Advisory Committee Notes, 1976 Adoption and 2004 Amendments. This gives the Court the flexibility and discretion initially to forego an answer in the interest of screening out frivolous applications and eliminating the burden that would be placed on a respondent by ordering an unnecessary answer. Advisory Committee Notes, 1976 Adoption. Rule 4 confers upon the Court broad discretion to take "other action the judge may order," including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Rule 4, Advisory Committee Notes, 1976 Adoption.
The Supreme Court has characterized as erroneous the view that a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding. See, Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n. 14 (1978). However, in light of the broad language of Rule 4, it has been held in this circuit that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present various procedural issues. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (a motion to dismiss for failure to raise any issue of federal law, which was based on the insufficiency of the facts as alleged in the petition to justify relief as a matter of law, was evaluated under Rule 4); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (procedural default in state court was appropriately the subject of a motion); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n. 12 (E.D.Cal. 1982) (after the trial court had determined that summary dismissal was unwarranted, a motion to dismiss for failure to exhaust state remedies was appropriately considered after receipt of evidence pursuant to Rule 7(a) to clarify whether or not the possible defect, not apparent on the face of the petition, might preclude a hearing on the merits).
Here, the Respondent's filing of the motion to dismiss, and the Court's consideration thereof, are appropriate. Respondent's motion to dismiss is based on lack of subject matter jurisdiction, mootness, failure to exhaust administrative remedies, and lack of standing. A federal court is a court of limited jurisdiction with a continuing duty to determine its own subject matter jurisdiction and to dismiss an action where it appears that the Court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n. 3 (9 th Cir. 1982) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9 th Cir. 1989). Although Petitioner proceeds pursuant to § 2241, Respondent's motion is similar in procedural posture to a motion to dismiss for failure to exhaust state court remedies or for state procedural default in a proceeding undertaken pursuant to ...