Petitioner is a federal prisoner without counsel proceeding with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties in this action have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Petitioner seeks an order requiring respondent to classify him as exempt from the federal Inmate Financial Responsibility Program ("IFRP"), and to cease all collection activities under his IFRP payment contract. Respondent contends that this court lacks subject matter jurisdiction over the petition because petitioner has failed to exhaust his administrative remedies. Respondent also argues that petitioner's participation in the IFRP does not violate the constitution or federal law. Upon careful consideration of the record and the applicable law, the court concludes that petitioner is not entitled to federal habeas relief. Accordingly, his petition will be denied.
Petitioner is currently serving a 180 month sentence for Possession of a Firearm by a Prohibited Person, an Armed Career Criminal, in violation of 18 U.S.C. §§ 922 (g)(1) and 924
(e)(1). Dckt. No. 15-1 at 3. At the time he filed the instant petition, petitioner was incarcerated at the Federal Correctional Institution in Herlong, California (Herlong). Dckt. No. 1 at 1. Petitioner was subsequently transferred and is currently housed in the Federal Correctional Institution in Sheridan, Oregon (Sheridan). Traverse (Dckt. No. 19) at 1; Answer (Dckt. No. 15) at 2.
Petitioner's current sentence does not include an order to pay restitution. However, in 1991 petitioner was convicted in the Central District of California on charges of bank robbery and attempted robbery of a Savings and Loan, in violation of 18 U.S.C. § 2113(a). Dckt. No. 15-1 at 13. Pursuant to that conviction, petitioner was ordered to pay restitution to Bank of America in the amount of $568.00, to American Commercial Bank in the amount of $1,933.00, and to Home Savings of America in the amount of $215.00, for a total restitution amount of $2,716.00. The 1991 judgment does not set a schedule of payment, but provides that "the defendant shall pay any restitution imposed by this judgment and that remains unpaid at the commencement of the term of community supervision, as directed by the Probation Officer." Id. at 14. The 1991 judgment further provides that all fines are waived, "as it is found that the defendant does not have the ability to pay." Id. After petitioner came into custody, he executed seven voluntary agreements to participate in the IFRP in order to contribute to his 1991 court-ordered restitution. Id. at 17-35. As of June 11, 2010, petitioner had an outstanding balance on his restitution account of $1,201.22. Id. at 40-41.
Petitioner filed this federal habeas petition on February 17, 2010. Therein, petitioner argues that, under the circumstances of this case, the United States Bureau of Prisons ("BOP") does not have the legal authority to collect his financial obligations under the IFRP. Respondent filed an answer to the petition on September 20, 2010. Petitioner filed a traverse on January 18, 2011.
A. Standards of Review Applicable to Habeas Corpus Claims Under § 2241
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 his custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). A federal prisoner who challenges the validity or constitutionality of his underlying conviction must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. On the other hand, a federal prisoner challenging the manner, location, or conditions of the execution of a sentence, as petitioner does here, 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); see also Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008).
Previously named as respondent was Richard Ives, the Warden of Herlong. However, as explained above, petitioner is now housed in Sheridan. Although respondent waives any objection to the court's jurisdiction over this matter on this basis, petitioner states that he "does not waive this fact of law, of who has current custodianship and/or jurisdiction at this time." Dckt. No. 19 at 2. Accordingly, the court now substitutes in the correct respondent, the Warden of Sheridan, where petitioner is presently incarcerated. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (in a habeas challenge, "the proper respondent is the warden of the facility where the prisoner is being held. . . "); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973) (stating, in a habeas corpus action pursuant to 28 U.S.C. § 2241, "The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.").
Pursuant to 28 U.S.C. § 2241(d), venue in a habeas corpus action requires that the petition be brought in the district court where the petitioner is confined or in the district where he was convicted and sentenced. Venue was proper in the Eastern District of California when this action was filed because petitioner was incarcerated at FCI Herlong. Although petitioner has since been transferred to FCI Sheridan, which is in the District of Oregon, this court may continue to exercise jurisdiction over this action. See Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) ("'[J]urisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change'") (quoting Santillanes v. United States Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985)); accord Smith
v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971) ("We hold that by reason of the fact that the petitioner and his custodian, his immediate commanding officer, were within the territorial jurisdiction of the district court at the time the petition for writ of habeas corpus was filed, the district court had jurisdiction to determine the merits of the litigation . . . subsequent involuntary removal of the petitioner from the district does not ...