United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 7, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
____________________ Clerk
No. 03-40040
Summary Calendar
____________________
RICHARD C. RODRIGUEZ,
Petitioner-Appellant,
versus
PERCY H. PITZER, Warden,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:98-CV-1937)
_________________________________________________________________
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Richard C. Rodriguez, federal prisoner #64931-080, appeals,
pro se, the denial of his 28 U.S.C. § 2241 petition seeking, inter
alia, nunc pro tunc designation by the Bureau of Prisons (BOP) of
state prison having been his place of confinement for the first
five years of his federal sentence. That federal sentence was
based on his conviction of drug possession with intent to
distribute; he was sentenced to 14 years’ imprisonment. A state
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
court subsequently revoked his parole for a prior burglary offense,
and Rodriguez spent five years in state prison. Upon his parole to
federal detention, the BOP did not compute his federal sentence as
including those five years spent in state prison.
Rodriguez first contends the district court erred in denying
his request for an extension of time in which to object to the
magistrate judge’s report, which he allegedly never received. That
decision is reviewed for abuse of discretion. E.g., Midland West
Corp. v. Federal Deposit Ins. Corp., 911 F.2d 1141, 1145 (5th Cir.
1990). Any error in denying the petition without first affording
Rodriguez the ability to object to the magistrate judge’s report
was harmless; the district court was able to engage in a meaningful
review absent Rodriguez’s objections, because none of Rodriguez’s
habeas claims “arose from a factual dispute and the district
[court] could assess the merits of the petition from its face”.
See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981) (internal
quotations and citation omitted); see also McGill v. Goff, 17 F.3d
729, 732 (5th Cir. 1994), overruled on other grounds by, Kansa
Reins. Co. v. Congressional Mortgage Co., 20 F.3d 1362, 1373-74
(5th Cir. 1994).
On the merits, Rodriguez contends the BOP abused its
discretion in refusing to designate, nunc pro tunc, the state
prison as the first place of confinement for his federal sentence,
based on 18 U.S.C. § 3584(a)(If defendant “already subject to an
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undischarged term of imprisonment ... [m]ultiple terms of
imprisonment imposed at different times run consecutively unless
the court orders that the terms are to run concurrently”). We
review the district court’s ruling de novo. See Douglass v. United
Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
Rodriguez’s federal sentence provided no evidence that the
sentencing (district) court intended that it be served concurrently
with his pending state sentence. Because Rodriguez’s presentence
investigation report identified the pending state charges, we can
assume that the sentencing court was aware of Rodriguez’s pending
state proceeding. Moreover, the BOP fulfilled its obligation
pursuant to Barden v. Keohane, 921 F.2d 476, 483 (3d Cir. 1991) to
consider Rodriguez’ request for a nunc pro tunc designation — it
submitted Rodriguez’ request to the sentencing court which, in
response, submitted nothing to show an intent for the sentences to
run concurrently.
Given the absence of such intent, the BOP was well within its
discretion to deny Rodriguez’s request for a nunc pro tunc
designation. See 18 U.S.C. § 3584(a)-(b); 18 U.S.C. § 3621(b); BOP
Program Statement 5160.03 ¶¶ 5-7.
AFFIRMED
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