The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1)
ORDER DIRECTING THE CLERK TO ENTER JUDGMENT FOR RESPONDENT
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 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on April 21, 2011, and on behalf of Respondent on June 7, 2011. Pending before the Court is the petition, which was filed on April 4, 2011. Respondent answered the petition on June 17, 2011; Petitioner filed a traverse and memorandum on June 30, 2011.
A. Subject Matter Jurisdiction
Petitioner alleged in the petition that he was an inmate of the Taft Correctional Institution (TCI) located at Taft, California, serving a sentence of 188 months. (Pet. 2.) Petitioner alleges that the staff of the Bureau of Prisons (BOP) have failed to include good conduct time credit in computing his eligibility for the Elderly Offender Home Detention Pilot Program (the program), which permits placement of elderly offenders on home detention on a trial basis if the offender is sixty-five years of age and has served the greater of ten years or seventy-five percent of the term of imprisonment imposed. 42 U.S.C. § 17541(g)(5)(A)(i)-(ii). Petitioner seeks the credit to which he believes he is entitled in connection with the determination of his eligibility.
Respondent argues that the Court does not have jurisdiction over the present controversy because Petitioner does not challenge the fact or duration of his confinement, and even if relief were granted, it would not shorten his period of confinement. Respondent relies on Meachum v. Fano, 427 U.S. 215, 224 (1976), a civil rights proceeding pursuant to 42 U.S.C. § 1983 in which it was held that an administrative, non-disciplinary transfer of an inmate to another prison did not affect a liberty interest of the prisoner that was protected by the Due Process Clause. Respondent also relies on Toussaint v. McCarthy, 801 F.2d 1080, 1103 (9th Cir. 1986), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995), an action pursuant to § 1983 in which the appellate court reviewed an injunction requiring release of prisoners from administrative segregation. In Toussaint, the defendants argued that the district court lacked jurisdiction under § 1983 to order prisoners released from administrative segregation because 28 U.S.C. § 2254 was the exclusive federal remedy for a prisoner challenging conditions of confinement. Defendants relied on Preiser v. Rodriguez, 411 U.S. 475 (1973), where inmates sought injunctive relief to compel restoration of lost time credits, and where the Court found that habeas corpus relief was the sole remedy for challenges to the very fact or duration of physical imprisonment accompanied by prayers for immediate or speedier release from imprisonment. In Toussaint, no actual restoration of time credit was part of the injunctive relief ordered, so the injunction ordering release from administrative segregation was held not to have exceeded the court's jurisdiction. 801 F.2d at 1103.
Here, Petitioner's challenge concerns application of a statute which authorizes the Attorney General to conduct a pilot program involving "removing eligible elderly offenders from a Bureau of Prisons facility and placing such offenders on home detention until the expiration of the prison term to which the offender was sentenced." 42 U.S.C. § 17541(g)(1)(A). The program authorizes the Attorney General to "release some or all eligible elderly offenders from the Bureau of Prisons facility to home detention." § 17541(g)(1)(B). Thus, the program expressly relates not to release from confinement, but rather to placement during the service of a prison term, a matter involving the manner of execution of Petitioner's sentence.
Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Although a federal prisoner who challenges 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 bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000).
In describing the claims that are permitted to be raised in a motion pursuant to the section, 28 U.S.C. § 2255 refers to a "prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released...." Thus, the statute authorizing challenges to the sentence expressly requires that a petitioner proceeding pursuant to § 2255 claim a right to release. In contrast, § 2241 contains no such requirement.
Respondent correctly notes that the "core" of habeas corpus relief in cases pursuant to 28 U.S.C. § 2254 has been identified as involving challenges to the fact or duration of confinement. However, Respondent has not cited any Supreme Court authority that requires a claim to relate to the fact or duration of confinement in order for a court to have jurisdiction pursuant to § 2241. The Supreme Court has acknowledged generally in a case pursuant to § 2254 that habeas corpus may be available to challenge prison conditions when a prisoner is put under additional and unconstitutional restraints during lawful custody, and it has noted that habeas corpus has been available to address a claim that a prisoner is unlawfully confined in the wrong institution. Preiser v. Rodriguez, 411 U.S. 475, 499, 486.
Likewise, this circuit has held that the habeas remedy pursuant to § 2241 is available for claims that do not involve the fact or duration of confinement, but rather concern the manner of execution of a sentence. See, Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008) (a statutory challenge to the BOP's failure to transfer an inmate to a residential re-entry center was considered pursuant to § 2241 without a discussion of jurisdiction); United States v. Lemoine, 546 F.3d 1042 (9th Cir. 2008) (a challenge on constitutional and statutory grounds to the BOP's requirement that an inmate pay restitution at a higher rate than the sentencing court had ordered was considered pursuant to § 2241 without a discussion of jurisdiction); Montano-Figueroa v. Crabtree, 162 F.3d 548, 549-50 (9th Cir. 1998) (a challenge on constitutional and statutory grounds to the BOP's program for determining the amount and timing of payment by inmates of court-ordered fines was considered pursuant to § 2241 without a discussion of jurisdiction).
In Foster v. Washington-Adduci, no. CV 09-07987-PSG (DTB), 2010 WL 1734916, *3-*4 (C.D.Cal. March 24, 2010), the court relied on the foregoing authorities in concluding that a district court has jurisdiction pursuant to § 2241 to consider a claim concerning the program at issue in the present case. The reasoning of the court is persuasive. Accordingly, this Court has jurisdiction over the subject matter of the petition.
B. Jurisdiction over the Respondent
For a federal court to have jurisdiction over a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, the Petitioner must name his custodian as a respondent; a failure to name and serve the custodian deprives the Court of personal jurisdiction. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003). The local custodian, or warden of the penitentiary where a prisoner is confined, constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Id.; Rumsfeld v. Padilla, 542 U.S. 426, 446-47 (2004).
Here, Petitioner has named as Respondent the warden of the correctional institution in which he was confined at the time the petition was filed. Petitioner's subsequent transfer to a federal correctional institution in Oregon does not affect the Court's jurisdiction over the person of the Respondent because it is sufficient if the custodian is in the territorial jurisdiction of the Court at the time the petition was filed. Transfer of the petitioner thereafter does not defeat personal jurisdiction that has once been properly established. Ahrens v. Clark, 335 U.S. 188, 193 (1948), overruled on other grounds in Braden v. ...