United States District Court, D. South Carolina, Anderson/Greenwood Division
F. Anderson, Jr. United States District Judge.
matter is before the Court on Respondent Warden FCI
Williamsburg's (“Respondent”) Motion to
Dismiss or, in the alternative, for Summary Judgment
(“Motion”) (ECF Nos. 11, 12) as to Petitioner
Christopher Adam Tessinger's (“Petitioner”)
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241 (“Petition”) (ECF No. 1). Petitioner,
a federal prisoner proceeding pro se, filed his Petition on
January 19, 2018. (ECF No. 1). Respondent filed the Motion on
March 13, 2018, asking the Court to dismiss the Petition.
(ECF Nos. 11, 12). On March 14, 2018, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Petitioner was advised to respond to the Motion and of the
possible consequences of failing to adequately respond. (ECF
No. 13). Petitioner filed a Response to the Motion on April
11, 2018, and a Supplemental Response on July 23, 2019. (ECF
Nos. 17, 19).
reviewing the pleadings, the Magistrate Judge assigned to
this action prepared a thorough Report and
Recommendation (“Report”), which recommends
Respondent's Motion be granted and Petitioner's
Petition be denied. (ECF No. 21). The Report sets forth, in
detail, the relevant facts and standards of law on this
matter (ECF No. 21), and the Court incorporates such without
a recitation. The Magistrate Judge filed the Report on August
6, 2018, and Petitioner was advised of his right to file
objections to that Report by August 20, 2018. (ECF Nos. 21,
21-1). Petitioner timely filed his Objections on August 15,
2018. (ECF No. 23). Thus, the Motion is ripe for review.
district court is required to conduct a de novo
review only of the specific portions of the Magistrate
Judge's Report to which objections are made. See
28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); see also
Carniewski v. W.Va. Bd. of Prob. & Parole, 974 F.2d
1330 (4th Cir. 1992). In the absence of specific objections
to portions of the Report, the Court is not required to give
an explanation for adopting the Report. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Thus, the
Court must only review those portions of the Report to which
Plaintiff has made specific written objections. Diamond
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316
(4th Cir. 2005).
objection is specific if it ‘enables the district judge
to focus attention on those issues- factual and legal-that
are at the heart of the parties' dispute.'”
Dunlap v. TM Trucking of the Carolinas, LLC, No.
0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec.
12, 2017) (citing One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A
specific objection to the Magistrate Judge's Report thus
requires more than a reassertion of arguments from the
Complaint or a mere citation to legal authorities. See
Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL
4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection
must “direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
stated, nonspecific objections have the same effect as would
a failure to object.” Staley v. Norton, No.
9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007)
(citing Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The Court
reviews portions “not objected to-including those
portions to which only ‘general and conclusory'
objections have been made-for clear error.”
Id. (emphasis added) (citing Diamond, 416
F.3d at 315; Camby, 718 F.2d at 200;
Orpiano, 687 F.2d at 47).
an objection is “nonspecific, unrelated to the
dispositive portions of the Magistrate Judge's Report and
Recommendation, or merely restate[s] . . . claims, ”
the Court need not conduct any further review of that
objection. Field v. McMaster, 663 F.Supp.2d 449, 452
(D.S.C. 2009); see also McNeil v. S.C. Dept. of
Corrections, No. 5:12-2880-MGL, 2013 WL 1102881, at *1
(D.S.C. Mar. 15, 2013) (finding the petitioner's
objections to be without merit where the objections were
“non-specific, unrelated to the dispositive portions of
the Magistrate Judge's Report, and consist[ed] of a
reassertion of the arguments” made in the petition);
Arbogast v. Spartanburg Cty., No.
07:11-cv-00198-GRA, 2011 WL 5827635, at *2 (D.S.C. Nov. 17,
2011) (finding that the plaintiff's objections were not
specific where the objections were “general and
conclusory in that they merely reassert[ed] that his
conviction was wrongful.”).
Respondent has presented to the Court matters outside the
pleadings, which the Court did not exclude, Respondent's
motion to dismiss shall be treated as one for summary
entirety of Petitioner's arguments and objections can be
distilled into one allegation: that the Bureau of Prisons
(“BOP”) abused its discretion in denying
Petitioner's application for nunc pro tunc designation by
failing to contact the judge who conducted his federal
sentencing pursuant to the statutory factors articulated in
18 U.S.C. § 3621(b). (ECF No. 23). Although Petitioner
broadly alleges that the BOP did not address “these
statutory factors, ” he only specifically objects to
the BOP's treatment of Factor 4, which requires the BOP
to consider statements made by the sentencing court in making
its nunc pro tunc determination. (ECF No. 23 at 7). With
respect to Petitioner's challenge to the BOP's denial
of his request for a nunc pro tunc designation, the Court
finds that the BOP did not abuse its discretionary authority
in denying Petitioner's request.
statute mandates that “[a] sentence to a term of
imprisonment commences on the date the defendant is received
in custody awaiting transportation to, or arrives voluntarily
to commence service of sentence at, the official detention
facility at which the sentence is to be served.” 18
U.S.C. § 3585. The BOP is prohibited from applying any
prior custody credit toward a federal sentence unless the
prior time served was a result of (1) the offense for which
the current sentence was imposed or (2) a charge for which
the petitioner was arrested after the commission of the
offense for which the current sentence was imposed. 18 U.S.C.
§ 3585(b) prohibits the BOP from applying prior custody
credit toward the federal sentence if the prisoner already
received the credit toward another sentence. Id.;
see, e.g., United States v. Brown, 977 F.2d
574, 1992 WL 237275, at *1 (4th Cir. 1992) (unpublished table
decision) (citing 18 U.S.C. § 3585(b)) (“[A]
defendant may receive credit against his federal sentence for
time spent in official detention prior to the date his
sentence commences unless it has been credited against
another sentence.”). As a result, in enacting §
3585(b), “Congress made clear that a defendant could
not receive a double credit for his detention time.”
United States v. Wilson, 503 U.S. 329, 337 (1992).
inmate in non-federal custody may have his federal sentence
commence the date it is imposed if the BOP makes a nunc pro
tunc designation under 18 U.S.C. § 3621(b), which allows
the non-federal facility to serve as a place for service of
the federal sentence. Barden v. Keohane, 921 F.2d
476, 483 (3d Cir. 1990). Section 3621(b) enumerates the
following factors for the BOP to consider in making a nunc
pro tunc designation: (1) the resources of the non-federal
facility; (2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner; (4) any
statement by the sentencing court; and (5) any pertinent
policy statement issued by the Sentencing Commission pursuant
to 28 U.S.C. § 994(a)(2). 18 U.S.C. § 3621. While
under no obligation to grant a nunc pro tunc designation
request, the BOP is to consider the language of the federal
and state judgments, the state sentence data record to
include jail credit, and “any other pertinent
information relating to the federal and state
sentences.” BOP Program Statement 5160.05(9)(b)(4)(b).
The BOP is afforded wide latitude in exercising its delegated
authority under § ...