United States District Court, D. South Carolina, Anderson/Greenwood Division
OPINION & ORDER
M. Herlong, Jr., Senior United States District Judge.
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Jacqueline D. Austin made
in accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02 of the District of South Carolina. Antonio Rhodes
(“Rhodes”) seeks habeas corpus relief pursuant to
28 U.S.C. § 2241. In her Report and Recommendation,
Magistrate Judge Austin recommends granting Respondent's
motion for summary judgment and dismissing Rhodes' §
Factual and Procedural History
is currently incarcerated at FCI Estill. On September 5,
1995, Rhodes was arrested by the Hillsborough County
Sheriff's Department in Tampa, Florida for bank robbery.
(Am. Mot. Summ. J. Ex. 2 (Erickson Decl. ¶ 4), ECF No.
17-2.) Rhodes was held in state custody on the bank robbery
charge, as well as outstanding charges for grand theft,
robbery, battery on a law enforcement officer, and robbery
with a firearm and aggravated battery. (Id. Ex. 2
(Erickson Decl. ¶ 4), ECF No. 17-2.)
October 26, 1995, Rhodes was indicted in the United States
District Court for the Middle District of Florida for bank
robbery in violation of 18 U.S.C. § 2113(a).
(Id. Ex. 2 (Erickson Decl. ¶ 5), ECF No. 17-2.)
The United States Marshals Service borrowed Rhodes from the
State of Florida pursuant to a writ of habeas corpus ad
prosequendum on November 22, 1995. (Id. Ex. 2
(Erickson Decl. ¶ 6 & Ex. 6 to Decl.), ECF No.
17-2.) On March 28, 1996, Rhodes was sentenced to 130
months' imprisonment by the United States District Court
for the Middle District of Florida (“federal
sentence”). (Id. Ex. 2 (Erickson Decl. ¶
7 & Ex. 7 to Decl.), ECF No. 17-2.) The United States
Marshals Service returned Rhodes to the custody of the State
of Florida on April 1, 1996; placing the federal judgment and
commitment as a detainer. (Am. Mot. Summ. J. Ex. 2 (Erickson
Decl. ¶ 8 & Ex. 6 to Decl.), ECF No. 17-2.)
April 12, 1996, Rhodes was sentenced by the Circuit Court of
Hillsborough County, Florida to 60 months' imprisonment
for grand theft; life imprisonment for robbery, which was
subsequently reduced to a term of 30 years' imprisonment;
60 months' imprisonment for battery on a law enforcement
officer; and 154 months' imprisonment for robbery with a
firearm and aggravated battery. (Id. Ex. 2 (Erickson
Decl. ¶ 9 & Ex. 8 to Decl.), ECF No. 17-2.) All
terms were ordered to run concurrently with each other and
the federal sentence. (Id. Ex. 2 (Erickson Decl.
¶ 9), ECF No. 17-2.)
was released from the Florida Department of Corrections into
the custody of the United States Marshals Service to begin
service of his federal sentence on July 21, 2014.
(Id. Ex. 2 (Erickson Decl. ¶ 10), ECF No.
17-2.) Rhodes' federal sentence was computed to commence
on July 21, 2014, the day he came into federal custody.
(Id. Ex. 2 (Erickson Decl. ¶ 17 & Ex. 8 to
Decl.), ECF No. 17-2.) Rhodes was not awarded prior custody
credit for any time prior to July 21, 2014. (Am. Mot. Summ.
J. Ex. 2 (Erickson Decl. ¶ 17 & Ex. 8 to Decl.), ECF
No. 17-2.) Rhodes' projected release date is December 28,
2023. (Id. Ex. 2 (Erickson Decl. Ex. 8), ECF No.
August 1, 2016,  Rhodes filed the instant petition pursuant
to § 2241, arguing that the Federal Bureau of Prisons
(“BOP”): (1) abused its discretion by refusing
his request for a nunc pro tunc designation or retroactive
concurrent credit and (2) erred in refusing to give him
credit for his federal sentence because he was in federal
custody when the state court nolle prossed state charges
because the charges had been adopted by federal authorities
for federal prosecution. (§ 2241 Pet. 8-9, ECF No. 1.)
Respondent filed a motion to dismiss or, in the alternative,
for summary judgment on October 14, 2016. (Mot. Summ. J., ECF
No. 16.) On October 17, 2016, Respondent amended its motion
to dismiss or, in the alternative, for summary
judgment. (Am. Mot. Summ. J., ECF No. 17.) On
November 16, 2016, Rhodes filed a response in opposition.
(Resp. Opp'n Am. Mot. Summ. J., ECF No. 20.) Magistrate
Judge Austin issued a Report and Recommendation on February
24, 2017, recommending granting Respondent's motion and
dismissing Rhodes' petition. (R&R, ECF No. 23.)
Rhodes filed timely objections on March 7, 2017. (Objs., ECF
No. 25.) This matter is now ripe for consideration.
Factual and Procedural History
Summary Judgment Standard
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of
material fact exists, the evidence of the non-moving party is
to be believed and all justifiable inferences must be drawn
in his favor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). However, “[o]nly disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Id. at 248.
litigant “cannot create a genuine issue of material
fact through mere speculation or the building of one
inference upon another.” Beale v. Hardy, 769
F.2d 213, 214 (4th Cir. 1985). “[W]here the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, disposition by summary
judgment is appropriate.” Monahan v. Cty. of
Chesterfield, Va., 95 F.3d 1263, 1265 (4th Cir. 1996)
(internal quotation marks and citation omitted). “[T]he
mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact.” Ballenger v. N.C. Agric. Extension
Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal
quotation marks and citation omitted).
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation of the
magistrate judge, this court is not required to give any
explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Upon review,
the court was able to glean three specific objections. Rhodes
objects that the magistrate judge erred by finding that the
BOP did not err in: (1) calculating the start date of his
federal sentence, ...