United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
is currently an inmate at the Federal Correctional
Institution in Oakdale, Louisiana (“FCI
Oakdale”). This writ of habeas corpus petition was
filed pro se on June 1, 2016 pursuant to 28 U.S.C.
§ 2241 . Petitioner raises the following claims for
relief in his Petition:
Ground One: That the B.O.P. filed a letter
of inquiry causing the sentencing court to erroneously alter;
resentence Petitioner to a consecutive sentence to his state
Ground Two: That the B.O.P. relinquished
custody of the Petitioner.
Ground Three: That the government violated
the defendant's plea agreement by not sticking to the
recommendation for concurrent sentences.
See Petition, pp. 8-9.
Respondent filed a motion to dismiss or in the alternative
for summary judgment on September 28, 2016. As Petitioner is
proceeding pro se, a Roseboro order was
filed on September 29, 2016, advising Petitioner that he had
thirty-four (34) days to file any material in opposition to
the motion for summary judgment. Petitioner was specifically
advised that if he failed to respond adequately, the motion
for summary judgment may be granted, thereby ending his case.
After receiving an extension of time, Petitioner filed as his
response a motion to dismiss his petition without prejudice.
Petitioner states in his motion that he wishes to dismiss
this case so that he can instead pursue some type of action
in the District Court of Northern Alabama (his sentencing
court) in his criminal case, no. 2:08-cr-0141.
Petitioner is the “master of his pleadings”, it
is recommended that his request to dismiss this action,
without prejudice, be granted. However,
Petitioner should not take this recommendation as expressing
any opinion as to whether or not he can successfully pursue
or even file an additional action in his criminal proceeding
in the District Court in Alabama. Petitioner should also be
mindful of requirements relating to exhaustion of remedies,
statute of limitations, and successive petition rules which
may apply to his claims.
on the foregoing, unless Petitioner notifies the Court within
the time for filing objections to this Report and
Recommendation that he desires to continue to pursue his
claims in this Court as a § 2241 action, it is
recommended that Petitioner's motion to dismiss be
granted, that Respondent's motion to dismiss and/or for
summary judgment be denied, without prejudice, and that this
habeas Petition be dismissed, without prejudice.
parties are referred to the Notice Page attached hereto.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must ‘only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.'”
Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal