The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DIRECTING PETITIONER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He has consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c).
On June 8, 2012, Petitioner filed the instant petition in this Court. He is currently in the custody of the Bureau of Prisons at the United States Penitentiary in Atwater, serving a sentence of 180 months as a result of a conviction sustained in the United States District Court for the District of Kansas. He claims the Bureau of Prisons has failed to calculate his sentence correctly. He states he spent four years in state custody prior to his federal sentencing. He states the Bureau of Prisons has credited him with seven (7) months of that time spent in state custody. He claims he is entitled to a credit against his federal sentence with the balance of the four years spent in state custody since the state sentencing judge ordered the state sentence to run concurrent to his federal sentence.
Petitioner was sentenced in the U.S. District Court for the District of Kansas on the morning of December 19, 2003, to a federal prison term of 180 months. On that same date, he was returned to state custody where he was sentenced on a separate state conviction by the Kansas state court to a term of 49 months in state prison. According to Petitioner, the state judge ordered the state sentence to be run concurrent to the federal sentence. Petitioner was then remanded into the custody of the Kansas state prison authority and he commenced his state sentence. After completing his state sentence, on April 13, 2007, Petitioner was turned over to the Bureau of Prisons pursuant to a federal detainer. He then commenced his federal sentence.
I. Preliminary Review of Petition
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. See Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 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).
II. Subject Matter Jurisdiction and Venue
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus 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). In this case, Petitioner challenges the execution of his sentence. Therefore, the Court has subject matter to hear Petitioner's claims pursuant to 28 U.S.C. § 2241.
Pursuant to § 2241, venue is proper in the district court where a petitioner is confined. In this case, Petitioner is confined in the United States Penitentiary in Atwater, California, which is located in this district. Accordingly, venue is proper in this Court.
Petitioner argues his federal sentence has not been properly credited with time served while in state custody. Petitioner's ...