United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE.
the court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 23) recommending
the Court grant Respondents' motion for summary judgment
(Dkt. No. 9) and dismiss Petitioner's Petition for a Writ
of Habeas Corpus ("Petition"). For the reasons set
forth below, the Court adopts the R & R as the order of
the Court and the Petition is dismissed.
David Williams filed this Petition seeking to have certain
jail time spent in state custody and federal pretrial
detention applied toward his sentence. (Dkt. No. 1). The
Magistrate Judge construed the motion as one for summary
judgment and recommended that the motion be granted and
Petitioner's petition be dismissed. (Dkt. No. 23).
Petitioner has not filed objections.
Summary Judgment 
prevail on a motion for summary judgment, the movant must
demonstrate that there is no genuine issue of any material
fact and that the movant is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(a). The party seeking summary
judgment has the burden of identifying the portions of the
"pleadings, depositions, answers to interrogatories, any
admissions on file, together with the affidavits, if any,
which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law." Celotex Corp. v. Catrett, 411 U.S.
317, 322 (1986). The Court will construe all inferences and
ambiguities against the movant and in favor of the non-moving
party. US. v. Diebold, Inc., 369 U.S. 654, 655
(1962). The existence of a mere scintilla of evidence in
support of the non-moving party's position is
insufficient to withstand a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). However, an issue of material fact is genuine if the
evidence is such that a reasonable jury could return a
verdict in favor of the non-movant. Id. at 257.
the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). "In the language of the Rule,
the nonmoving party must come forward with "specific
facts showing that there is a genuine issue for trial."
Id. at 587. "Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no 'genuine issue for
trial.'" Id. quoting First Nat'l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
Report and Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270
- 71 (1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). In
the absence of any specific objections, "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."
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal
quotation omitted). Petitioner did not file objections in
this case, and the R & R is reviewed for clear error.
period of June 7, 2014, through November 16, 2014,
Petitioner's state pretrial detention, was credited
toward Petitioner's state sentence when it was originally
imposed. (Dkt. No. 9-1 at 19). Therefore, it cannot be
credited toward Petitioner's federal sentence.
See 18 U.S.C. § 3585(b). Petitioner also argues
he should receive credit for time spent in federal detention
prior his federal sentencing, however time spent in detention
subject to a writ of habeas corpus ad prosequendum
from state custody is not credited as prior custody credit
since the prisoner remains in state custody. See
Williamson v. Pettiford, No. CA 807-3739-HMH-BHH, 2008
WL 2076664, at *3 (D.S.C. May 9, 2008) ("temporary
removal of a prisoner from state custody to federal custody
pursuant to a writ of habeas corpus ad prosequendum does not
transfer a prisoner from state to federal custody; 'he is
merely on loan to federal authorities.'")
quoting Thomas v. Whalen, 962 F.2d 358, 361 n. 3
(4th Cir.1992). Instead, that is time that Petitioner was
serving his state sentence. Finally, to the extent Petitioner
argues that his sentence should be calculated to run
concurrently with the state sentence from November 16, 2014,
rather than June 10, 2015 (the date he was initially
sentenced in federal court), Petitioner is incorrect.
Instead, the Magistrate Judge correctly held that
Petitioner's sentence runs concurrently from June 10,
2015, as a federal sentence cannot begin prior to the date it
is pronounced. See United States v. McLean, 867 F.2d
609 (4th Cir. 1989) ("when a federal sentence is ordered
to run concurrently with a sentence being served, it can only
run concurrently with that part of the prior sentence
remaining to be served."). His sentence was accurately
computed by the sentencing judge, by the Bureau of Prisons
calculating his sentence to run concurrently with the state
sentence starting on June 10, 2015, and finally in the
Magistrate Judge's recommendation. The Petition therefore
will be dismissed.
foregoing reasons, the R & R of the Magistrate Judge
(Dkt. No. 23) is ADOPTED as the order of the
Court, the Court GRANTS Respondent's alternative Motion
for Summary Judgment ...