The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner declined to consent to Magistrate Judge jurisdiction. (ECF No. 3.)
On January 25, 2008, Petitioner was sentenced to custody of the Bureau of Prisons (BOP) for 96 months after being convicted of wire fraud and contempt. (Pet. at 2, ECF No. 1.)
Petitioner asserts that he has been denied admission into the Residential Drug Abuse Program (RDAP), despite Petitioner's contention that he is eligible for the program. (Pet. at 3.) Petitioner also asserts that he has filed four administrative appeals requesting entry to RDAP starting in October, 2011, all of which were denied. (Id.)
On June 4, 2012, Petitioner filed the instant federal habeas petition. Petitioner argues that he was denied admission to RDAP despite being eligible.
II. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
Writ of 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). Petitioner's claims are proper under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or conditions of the execution of petitioner's sentence and not the fact of petitioner's conviction or sentence. See Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (stating 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"). Venue is proper in this District as Petitioner is challenging the execution of his sentence at Taft Correctional Institution, which is within the Eastern District of California.
III. PROCEDURAL GROUNDS FOR SUMMARY DISMISSAL
The Rules Governing Section 2254 Cases may be applied to other habeas petitions including petitions from federal prisoners presenting claims under Section 2241. See Rule 1(a). The Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
IV. ANALYSIS OF PETITIONER'S CLAIM
Petitioner asserts that BOP's denial of his admission request into RDAP was inappropriate. This Court lacks ...