United States District Court, E.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY
GARY S. AUSTIN, 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. He has consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Petitioner is currently incarcerated at the United States Penitentiary in Atwater, California.
A. Preliminary Review of Petition
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition... that the petitioner is not entitled to relief." Rule 4 of the Rules Governing Section 2254 Cases; see also Hendricks v. Vasquez , 908 F.2d 490 (9th Cir. 1990). 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).
B. Subject Matter Jurisdiction
The Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody..." Preiser v. Rodriguez , 411 U.S. 475, 484 (1973). Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to a judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3); Williams v. Taylor , 529 U.S. 362, 375 (2000). A prisoner 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 in the district where the petitioner is in custody. See Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990); Hernandez v. Campbell , 204 F.3d 861, 864-65 (9th Cir. 2000) (per curiam).
18 U.S.C. § 3624(c) describes a prisoner's ability to be placed in community confinement:
(c) Pre-release custody. The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement.
18 U.S.C. § 3624(c).
In the present Petition, Petitioner seeks an "order' directing the Turning Point' halfway house in Fresno, California, reconsider' petitioner's placement in their R.R.C. program and absent a true and valid reason, accept' petitioner into their R.R.C. program." (Pet. 7, ECF 1). Petitioner admits that he is not challenging any policies or procedures of the Bureau of Prisons and that the Bureau of Prisons actually submitted him for Residential Re-entry Center designation. (Pet. 3). This Court does not have jurisdiction to order Turning Point, a private re-entry center that contracts with the Bureau of Prisons and the California Department of Corrections, ...