Petitioner is a federal prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1 Petitioner seeks an order requiring respondent to evaluate him forthwith for transfer to a residential re-entry center (hereinafter "RRC"). In opposing the granting of relief, respondent contends that: (1) this court lacks subject matter jurisdiction over this petition; (2) petitioner has failed to exhaust his administrative remedies; and (3) that the petition should be dismissed as moot.
Upon careful consideration of the record and the applicable law, petitioner's application for habeas corpus relief will be denied as moot.
On May 19, 2006, petitioner pled guilty in the United States District Court for the Central District of Utah to one count of manufacturing and attempting to manufacture methamphetamine, in violation of 21 U.S.C. § 841(a)(1). (Resp't's Answer, Ex. 2 at 2-7.) Pursuant to that plea petitioner was sentenced to the custody of the United States Bureau of Prisons to be imprisoned for a term of 121 months, a 36-month term of supervised release to commence upon release from imprisonment, restitution in the amount of $3,396.70 and a $100 special assessment. (Id.) The district court made no recommendation to the Bureau of Prisons ("BOP") regarding RRC placement, but did recommend that petitioner be imprisoned in Colorado, that he participate in the Residential Drug Treatment Program, and that he not be housed with his co-defendants. (Id. at 3.) Petitioner was committed to the custody of the BOP on June 23, 2006. (Resp't's Answer, Ex. 1 at 3.)
On October 7, 2008, petitioner requested to be evaluated for transfer to an RRC for the remainder of his sentence. (Resp't's Answer, Ex. 4 at 2.) The BOP denied that request on October 16, 2008. (Id.) Petitioner thereafter filed this federal petition on October 23, 2008. (Doc. No. 1.) Respondent filed an answer on December 29, 2008. (Doc. No. 9.) Petitioner's traverse was filed on January 8, 2009. (Doc. No. 10.)
I. Standards of Review Applicable to Habeas Corpus Claims
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).
II. Subject Matter Jurisdiction
As noted above, respondent argues that the petition pending before this court should be dismissed for lack of subject matter jurisdiction because petitioner is not challenging the fact or duration of his confinement. (Answer at 14.) In support of this argument respondent cites the decisions in Preiser v. Rodriguez, 411 U.S. 475 (1973) and Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003). (Id. at 16.)
However, petitioner's claim is properly brought under 28 U.S.C. § 2241, and not 28 U.S.C. § 2255, because it concerns the manner, location, or conditions of the execution of his sentence and not the fact of his conviction or sentence. Montano-Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir. 1998) (allowing a federal prisoner to challenge the BOP's restitution policies through a petition filed pursuant to 28 U.S.C. § 2241 ); Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1990) (observing 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"); see also Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000) (Although a federal prisoner challenging the validity or constitutionality of his conviction must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, a federal prisoner challenging the manner, location, or conditions of the execution of a sentence must instead bring a petition for writ of habeas corpus under 28 U.S.C. § 2241.)
Moreover, in Rodriguez v. Smith, 541 F.3d 1180, 1182 (9th Cir. 2008) the Ninth Circuit affirmed the district court's grant of the very relief requested here, namely, a writ of habeas corpus directing the BOP to afford the petitioner individualized consideration as provided for by statute. Although the question of subject matter jurisdiction was not expressly raised in Rodriguez, respondent's jurisdictional challenge is inconsistent with the court's decision in that case. Indeed, the Ninth Circuit has found that the reach of § 2241 extends to the manner of the execution of sentence that were alleged to violate statutory or Constitutional provisions but did not involve a direct or immediate effect on the fact or duration of the petitioner's confinement. See United States v. Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008) (entertaining and resolving on a petition pursuant to § 2241 a prisoner's challenge to the BOP's requirement that a federal prisoner pay restitution at a higher rate than ordered at sentencing pursuant to a federal statute); Hernandez, 204 F.3d at 864 ("petitions that challenge the manner, location or conditions of a [federal] sentence's execution must be brought pursuant to § 2241"); Montano-Figueroa, 162 F.3d at 549 (permitting a federal prisoner to challenge the BOP's policies concerning collection of court-ordered fines by way of a petition brought pursuant to 28 U.S.C. § 2241); see also Tucker, 925 F.2d at 332 (to the extent a federal prisoner challenges the fact or duration of his confinement a complaint should be construed as a § 2241 petition).*fn2
For these reasons, the court concludes that petitioner's action is one to which habeas corpus may extend because it concerns his custody under the authority of the United States which is allegedly in violation of specific federal statutes governing the execution of his sentence. The court, therefore finds that it has subject matter jurisdiction over this action. Hellum v. Sanders, No. CV 09-05136-CAS (VBK), 2010 WL 2430762, at *2 (C.D. Cal. May 11, 2010) (rejecting an jurisdictional challenge identical to that posed here and finding subject matter jurisdiction under § 2241); Carraway v. Adler, No. 1:8-cv-01782-LJO-JLT HC, 2010 WL 289292, at *5 (E.D. Cal. Jan. 15, 2010) ("Thus, the Court concludes that federal courts have jurisdiction to entertain challenges to the BOP's refusal to transfer a prisoner to an RRC facility pursuant to §2241."); Dominguez v. Adler, No. 1:09-cv-0255-JMD-HC, 2010 WL 121112, at *2 (E.D. Cal. Jan. 7, 2010) (rejecting an identical jurisdictional challenge to that posed here stating, "[i]n light of Rodriguez, the Court must conclude that jurisdiction is appropriate."); see also Peepers v. Sanders, No. CV 09-6647-DSF (AGR), 2010 WL 1330292, at *1, n.1 (C.D. Cal. Feb. 23, 2010) (concluding that where petitioner challenged the BOP's failure to approve a RDAP placement or release him to a halfway house, "[t]he court has jurisdiction over Petitioner's claims because they concern the manner, location or conditions of the execution of Petitioner's sentence") (citing Rodriguez v. Smith); Buonocore v. Ives, No. 2:07-cv-1164-GEB-JFM (HC), 2009 WL 559719, at *1 (E.D. Cal. Mar. 4, 2009) ("[I]t is not entirely clear that the decision in Ramirez completely vitiates the language in Hernandez suggesting § 2241 as an appropriate vehicle for a federal prisoner to challenge the location of confinement.")
Respondent next argues that the pending petition should be dismissed due to petitioner's failure to exhaust his administrative remedies. (Answer at 20-26.) In his petition petitioner conceded that, as of the date this action was filed, he had not exhausted his administrative remedies. (Pet. at 2.) However, he argued that exhaustion would be "futile" and "unnecessary" since the BOP's denial of his request was based on a "fixed, uniform national policy." (Id.) Subsequent to the filing of respondent's answer, petitioner notified the court that he had completed the exhaustion of his administrative remedies and had not been granted relief. (Doc. Nos. 15-16.)
Federal prisoners must exhaust their administrative remedies prior to the filing of petition seeking relief pursuant to § 2241. E.g., Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). Under this exhaustion doctrine, "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed remedy has been exhausted." Laing, 370 F.3d at 998 (quoting McKart v. United States, 395 U.S. 185, 193 (1969)). If a petitioner has not properly exhausted his claims, the district court in its discretion may either "excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative ...