ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF
COURT TO ENTER JUDGMENT AND CLOSE FILE NO CERTIFICATE OF APPEALABILITY IS REQUIRED
JENNIFER L. THURSTON, Magistrate Judge.
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On August 1, 2012, Petitioner filed his written consent to the jurisdiction of the Magistrate Judge for all purposes. (Doc. 8). On September 13, 2012, Respondent filed his written consent to the jurisdiction of the Magistrate Judge for all purposes. (Doc. 10).
Petitioner is in custody of the United States Bureau of Prisons ("BOP") serving a 120-month sentence pursuant to his 2004 conviction in the United States District Court for Northern District of Mississippi for a violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). (Doc. 12-1, Ex. 1, p. 2; Attach. 1, p. 3; Doc. 1, Attach., p. 9).
The federal possession charge arose out of an incident on December 24, 1999 in which two individual were murdered. (Doc. 12-1, Ex. 1, p. 3). On May 31, 2000, Petitioner was indicted by the State of Mississippi on two counts of murder and as being a habitual offender. ( Id., Attach 2, p. 10). Petitioner was indicted by federal authorities in the Northern District of Mississippi on the possession charge on June 12, 2002, while Petitioner was in state custody pending trial. (Doc. 12-1, Ex. 1). For the next two years, Petitioner was transferred from state custody to federal custody on three occasions: (1) from February 4, 2003 through February 11, 2003; (2) from November 26, 2003 through December 15, 2003; and (3) April 7, 2004. (Doc. 12-5, Ex. 1). Each transfer was effectuated through a petition for writ of habeas corpus ad prosequendum ("PWHCAP"), and, after each occasion, Petitioner was returned to the primary custody of the State of Mississippi. (Id.).
On April 7, 2004, the last occasion on which Petitioner was transferred to federal custody pursuant to a PWHCAP, he was sentenced to a 120-month prison term; however, the sentencing judge made no indication whether the sentence was to be concurrent or consecutive to any future state conviction. (Id.). On June 19, 2006, Petitioner pleaded guilty to two counts of manslaughter and sentenced to a state prison term of ten years. (Id.). The state sentencing court ordered the sentence to run consecutive to the federal sentence. (Id.). The State of Mississippi calculated Petitioner's sentence as having commenced on December 30, 1999, the date he was originally arrested by state law enforcement officers. (Id.). On April 4, 2009, Petitioner completed his state sentence, all of the time spent in the primary state custody from December 30, 1999 until that date having been credited against Petitioner's 10-year state sentence. (Id.).
Petitioner was not released upon completion of his state sentence, however, but was, instead, held on a federal detainer until April 9, 2009, at which time he was transferred to federal custody to serve his federal sentence. (Id.). The BOP calculated that Petitioner's federal sentence commenced on April 9, 2009, but credited Petitioner with the four days from April 5, 2009, the day after Petitioner completed his state sentence, until April 9, 2009. (Id.). Petitioner was not awarded any prior custody credit for the time from December 30, 1999 until April 4, 2009, while he was serving his state prison term. (Id.).
Subsequently, Petitioner filed a request with his prison facility, U.S.P. Atwater, to have his federal sentence designated as concurrent with his state sentence. (Doc. 12-1, Attach. 8). The BOP construed Petitioner's request for pre-sentence credits as a request for a "nunc pro tunc" designation of a consecutive sentence and indicated it would review the request pursuant to the applicable federal regulations. (Id.).
On July 12, 2010, Petitioner filed the instant petition, raising two grounds for relief, although both are inter-related: (1) the BOP abused its discretion by refusing to afford Petitioner credits prior to April 9, 2009; and (2) the BOP wrongfully maintained that the credits could not be awarded, presumably from the denial of nunc pro tunc status, because the District Court had been silent on whether the federal sentence was consecutive or concurrent. (Doc. 1, p. 2). Respondent's motion to dismiss was filed on September 13, 2012, contending that the claims are unexhausted, that the BOP correctly calculated Petitioner's credits, that Petitioner is not entitled to a "nunc pro tunc" designation, and that this Court lacks jurisdiction to review such a determination. (Doc. 10). On October 14, 2010, Petitioner filed his Traverse, which the Court construes as an opposition to the motion to dismiss. (Doc. 15). On May 17, 2013, Respondent filed supplemental documentation regarding the BOP's decision to deny Petitioner's request for "nunc pro tunc" designation. (Doc. 16).
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or constitutionality of his conviction must bring a petition for writ of habeas corpus under 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., Capaldi v. Pontesso , 135 F.3d 1122, 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons , 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili , 925 F.2d 889, 893-94 (6th Cir. 1991); Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990). To receive relief under 28 U.S.C. § 2241 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not necessarily unconstitutional, manner. See, e.g., Clark v. Floyd , 80 F.3d 371, 372, 374 (9th Cir. 1995) (contending time spent in state custody should be credited toward federal custody); Jalili , 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden v. Keohane , 921 F.2d 476, 479 (3rd Cir. 1990) (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Brown , 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parole). A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown , 610 F.2d at 677.
In this case, Petitioner alleges that he is being unlawfully denied credit against his federal sentence. Thus, Petitioner is challenging the execution of his sentence rather than its imposition; therefore, the claim is proper under 28 U.S.C. § 2241. In addition, because Petitioner was incarcerated at the time of filing of the petition at the United States Penitentiary, Atwater, California ("USP Atwater"), which lies within the Eastern District of California, Fresno Division, this Court has jurisdiction to proceed.
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition as being unexhausted, for lack of jurisdiction, and because the claims are meritless. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed Respondent's to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass , 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley , 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file ...