Opinion
Civil Action No. 6:18-1275-HMH-KFM
10-04-2018
Gregory Renard Davis, Petitioner, v. B.M. Antonelli, Respondent.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the respondent's motion to dismiss (doc. 11). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2241. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.
I. PROCEDURAL HISTORY
On May 9, 2018, the petitioner filed a petition in this court pursuant to 28 U.S.C. § 2241 seeking "credit for time spent in federal custody while borrowed from state by federal government on an habeas corpus ad prosequendum for related cases involving the same conduct" (doc. 1 at 8). The respondent filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) on July 23, 2018 (doc. 11). By order issued the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to adequately respond to the motion (doc. 12). On August 3, 2018, the petitioner filed a response in opposition (doc. 14).
II. FACTS PRESENTED
The petitioner is an inmate presently incarcerated in Federal Correctional Institution ("FCI") Williamsburg in Salters, South Carolina (doc. 11-1). On November 15, 2005, the petitioner was arrested by local law enforcement authorities in Whiteside County, Illinois, for unlawful delivery of a controlled substance and unlawful possession of a controlled substance (see doc. 11-3, Stopps decl. ¶ 7). On February 14, 2006, while awaiting trial on the state charges, the petitioner was indicted by federal authorities for conspiracy to distribute and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (id. ¶ 8; doc. 11-4). On March 1, 2006, the petitioner pled guilty to a single state charge, unlawful delivery of a controlled substance, receiving a sentence of six years imprisonment in the Illinois Department of Corrections ("IDOC") (doc. 11-2, Stopps decl. ¶ 9 & attach. 1). The petitioner received 136 days jail credit towards his Illinois state sentence for time spent in pretrial detention (id.).
Although the petitioner appears to have physically spent 106 days in pretrial detention on his state charges, the state court nevertheless credited him with 136 days of pretrial detention (doc. 11-3, Stopps decl. ¶ 9 & attach. 1).
On June 12, 2006, the petitioner, now in IDOC custody, was temporarily transferred from IDOC to the custody of the United States Marshals Service ("USMS") pursuant to a writ of habeas corpus ad prosequendum (id. ¶ 10 & attach. 2). On March 30, 2007, he appeared before the Honorable Thomas J. Shields, United States Magistrate Judge, Southern District of Iowa, and entered a plea of guilty to his federal indictment for conspiracy to distribute and possession with intent to distribute cocaine base (doc. 11-5). The Honorable John A. Jarvey, United States District Judge, Southern District of Iowa, accepted the petitioner's guilty plea on April 18, 2007 (doc. 11-6). On November 5, 2007, Judge Jarvey sentenced him to 255 months imprisonment, with "credits for . . . the seven months time served in the [IDOC] since November 15, 2005, for his conviction in Whiteside County, Illinois . . . based on conduct related to the instant offense" (doc. 11-7 at 2).
In an order ruling on the petitioner's motion in his federal criminal case requesting credit for time served on his state sentence between June 2006 and June 2008, Judge Jarvey stated that the petitioner's Guidelines Sentencing Range was 262 to 327 months, and he sentenced the petitioner to 255 months imprisonment "after crediting [him] for the seven months he served in IDOC from November 15, 2005, to June 12, 2006," the date he was temporarily taken into USMS custody pursuant to the writ of habeas corpus ad prosequendum (doc. 11-8 at 1), which translated to 210 days.
On December 10, 2007, the petitioner was returned to IDOC officials (doc. 11-3, Stopps decl. ¶ 12 & attach. 2). On April 15, 2008, the petitioner's state sentence was discharged when he was released from state custody to USMS custody (id. ¶ 13 & attach. 4). Between the date the time the petitioner was arrested by local law enforcement authorities on November 15, 2005, until the time he was released from state custody on April 15, 2008, 883 days elapsed. As pointed out by the respondent, based on the discrepancy in the state court's order for time spent in pretrial detention, it appears the petitioner was actually credited with serving 913 days on his state charge. The petitioner's 255-month federal sentence commenced on April 15, 2008 (id. ¶ 14 & attach. 5). The petitioner's projected release date on his federal sentence is December 17, 2026, via Good Conduct Time (doc. 11-1 at 1).
III. APPLICABLE LAW AND ANALYSIS
A. Petitioner's Allegations
In his petition, the petitioner seeks 24 months of "credit for time spent in federal custody while borrowed from state by federal government on an habeas corpus ad prosequendum for related cases involving the same conduct" (doc. 1 at 8-9). In support of this claim, the petitioner argues that because "the Illinois State Charges and the Federal Charges were related cases . . . he should have been credited the 'full time spent in custody' for the one offense that was shared between federal and state entities" (doc. 1-1 at 4). He argues that the Federal Bureau of Prisons ("BOP") should correct his time calculation to reflect the sentence commencement date of November 15, 2005, the date on which he was taken into custody by Illinois state officials on related charges (id. at 5). The respondent argues that the petition should be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) as the petitioner has failed to exhaust his administrative remedies and further argues that the petition is subject to dismissal for failure to state a claim pursuant to Rule 12(b)(6). B. Exhaustion of Administrative Remedies
The respondent first argues that the petitioner has not properly exhausted his administrative remedies and therefore the petition should be dismissed pursuant to Rule 12(b)(1) (doc. 11 at 3-6). Although the text of 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under Section 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in a § 2241 matter); Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (noting courts require "exhaustion of alternative remedies before a prisoner can seek federal habeas relief" (internal quotation marks omitted)). If a prisoner cannot obtain an administrative remedy because of his failure to timely appeal at the administrative level, then the prisoner has procedurally defaulted his § 2241 claim, unless the prisoner can demonstrate cause and prejudice for the failure. See, e.g., Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760-61 (3rd Cir. 1996), cited with approval by Watkins v. Compton, 126 F. App'x 621, 622 (4th Cir. 2005).
The BOP has a three-tiered formal administrative grievance process, in addition to an informal resolution process. See 28 C.F.R. § 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. Id. § 542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint to the Warden within 20 calendar days after the date upon which the basis for the request occurred. Id. § 542.14. The Warden shall respond within 20 calendar days. Id. § 542.18. If dissatisfied with the response, the inmate may appeal to the BOP's Regional Director within 20 days of the date of the Warden's response. Id. § 542.15(a). If dissatisfied with the regional response, the inmate may appeal to the Office of General Counsel within 30 days of the Regional Director's response. Id. Appeal to the General Counsel is the final level of agency review. Id. If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. Id. § 542.18.
The respondent notes that all formal requests are logged into the national database and given a unique identifying number. An extension is added to the number that denotes the level at which the claim is filed. Subsequent appeals of an issue will have the same identification number with a different extension identifying the level where filed. The extension "-F1" indicates the filing was at the institution or field level. The extension "-R1" indicates the filing was at the regional level. The extension "- A1" indicates the filing was at the national level. If an appeal is rejected and re-filed at the same level, perhaps correcting identified deficiencies, then the number will change but the letter will remain the same. For example, the extension "-R2" indicates the appeal was rejected at the regional level once and the inmate has re-filed, presumably after correction of the noted deficiencies (doc. 11 at 4-5).
The Court of Appeals for the Fourth Circuit has recognized that "an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citation omitted). Thus, "'when prison officials prevent inmates from using the administrative process . . . , the process that exists on paper becomes unavailable in reality.'" Bacon v. Greene, 319 F. App'x. 256, 257-58 (4th Cir. 2009) (quoting Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)). "The district court is 'obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials.' " Id. at 258 (quoting Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)). "Conversely, a prisoner does not exhaust all available remedies simply by failing to follow the required steps so that remedies that once were available to him no longer are." Moore, 517 F.3d at 725 (citation omitted). If the prisoner himself were at fault for not exhausting, then the case would be over. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). "[T]o be entitled to bring suit in federal court, a prisoner must have utilized all available remedies in accordance with the applicable procedural rules, so that prison officials have been given an opportunity to address the claims administratively." Moore, 517 F.3d at 725 (internal quotations omitted).
The petitioner has failed to completely exhaust his administrative remedies. Specifically, a review of his administrative remedy history by Jan Stopps, a Management Analyst at the BOP's Designation and Sentence Computation Center, shows that the petitioner only sought relief at the institutional level (doc. 11-2; doc. 1 at 21; doc. 11-3, Stopps decl. ¶ 5). The petitioner attached the institutional response to remedy number 817764-F1 to his petition (doc. 1-2). The response is dated April 26, 2015, and references the petitioner's request for administrative remedy dated April 13, 2015 (id.). Thus, the Warden's response was timely. See 28 C.F.R. § 542.18 (stating that warden shall make response within 20 calendar days of the filing of a request for administrative remedy). There is no record indicating the petitioner sought additional review of the institution's response at either the Regional or General Counsel levels as required by BOP policy.
In his response to the defendant's motion to dismiss, the plaintiff states that he "has been advised by DSCC and the Unit Team Staff that [he] had to contact the DSCC for an analysis of the computation and data of [his] particular case" (doc. 14 at 1). He further states in his declaration that "after [he] filed to the DSCC [he] was directed by Unit Team Staff to file a Title 28 U.S.C. § 2241 habeas corpus writ to involve the United States District Court" and that he thereafter did so (doc. 14-1, pet. decl.). However, the petitioner has failed to proffer any evidence suggesting that prison officials preventing him from using the administrative remedy process or that the remedy process was otherwise unavailable to him. As a result, his petition should be dismissed for failure to exhaust his administrative remedies. Should the district court find that the defects in exhaustion of the petitioner's administrative remedies were the result of the actions of prison officials, the undersigned recommends that the petition be dismissed on the merits, as discussed below C. Merits
Presumably, the petitioner is referencing the BOP's Designation and Sentence Computation Center as the DSCC.
1. Standard of Review
The respondent has also moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. "The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint." Williams v. Preiss-Wal Pat III, LLC, 17 F. Supp. 3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a " 'short and plain statement of the claim showing the pleader is entitled to relief,' in order to 'give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
"In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document "was integral to and explicitly relied on in the complaint," and there is no authenticity challenge. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F. Supp. 2d 612, 622 (D.S.C. 2011) ("In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also 'consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'") (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: "If on a motion under Rule 12(b)(6) . . . , matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion."
Here, the undersigned has considered documents attached by the respondent to the motion to dismiss (docs. 11-1 to 11-8), which includes the declaration of Jan Stopps (doc. 11-3, Stopps decl.), as well as the petitioner's declaration (doc. 14-1, pet. decl.), which is attached to the petitioner's response in opposition to the motion. While many if not all of these documents appear integral to the petition and no question as to their authenticity has been raised, the undersigned finds that the safer course would be to treat the motion as one for summary judgment under Federal Rule of Civil Procedure 56 as matters outside the pleadings have been presented to and not excluded by the court. See Fed. R. Civ. P. 12(d).
Rule 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment 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). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only 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.
2. Computation of Sentence
As detailed above, the petitioner requests "24 months time credit" against his federal sentence (doc. 1-1 at 5). In his response in opposition to the respondent's motion, the petitioner clarifies that he "has challenged 24 months uncredited time spent in official custody" from November 15, 2005 (date the petitioner was arrested on state charges), to March 1, 2006 (date the petitioner pled guilty and was sentenced on state charges), and from June 12, 2006, to December 10, 2007 (time period spent in USMS custody pursuant to a writ of habeas corpus ad prosequendum) (doc. 14 at 3).
The computation of a federal sentence is the responsibility of the Attorney General of the United States and has been delegated to the BOP. See United States v. Wilson, 503 U.S. 329, 331 (1992); 28 C.F.R. § 0.96. "'Computing a federal sentence requires two separate determinations: first, when the sentence commences; and, second, to what extent the defendant in question may receive credit for any time already spent in custody.'" Chambers v. Holland, 920 F. Supp. 618, 621 (M.D. Pa. 1996) (quoting United States v. Smith, 812 F. Supp. 368, 370 (E.D.N.Y. 1993)).
a. Commencement of Sentence
Under the Prison Litigation Reform Act of 1995 ("PLRA"), the commencement date of a federal sentence occurring on or after April 26, 1996, is governed by 18 U.S.C. § 3585(a). The petitioner's sentence was imposed after the effective date of the PLRA (doc. 11-1). Thus, when determining the commencement date of a federal sentence, the BOP relies on 18 U.S.C. § 3585(a), which states:
Commencement of sentence-- A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to . . . the official detention facility at which the sentence is to be served.18 U.S.C. § 3585(a). The computation of federal sentences is solely within the purview of the BOP. Wilson, 503 U.S. at 335.
In the petitioner's case, his federal sentence commenced on April 15, 2008, the day he was taken into USMS custody following his discharge from IDOC custody (doc. 11-3, Stopps decl. § 13). There is nothing in the record to support any suggestion that the sentencing judge sought to run the petitioner's federal sentence concurrent with his state sentence, and, since 18 U.S.C. § 3584(a) explains that "[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently," it follows that his federal sentence must run consecutive to his state sentence. Williamson v. Pettiford, C.A. No. 8:07-3739-HMH-BHH, 2008 WL 2076664, at *4 n.5 (D.S.C. May 2008) ("The federal court did not order that [the petitioner's] federal sentence run concurrently to any previously-imposed state sentence. Therefore, [the petitioner's] federal sentence properly began consecutively to his state sentence.") (citation omitted). Thus, the only remaining question is whether the petitioner is entitled to prior custody credit and if so, to what extent.
To the extent the petitioner is arguing he is entitled to a nunc pro tunc designation—a designation in which the state facility is designated as the facility at which his federal sentence may commence—he is ineligible for such a designation as a federal sentence cannot commence on a date prior to sentencing. See Simonds v. Bragg, C.A. No. 8:15-3254-PMD-JDA, 2016 WL 3545387, at *4 (D.S.C. Apr. 2016) ("[a] federal sentence cannot commence before it is imposed."); see also Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010) (indicating the BOP may only consider a nunc pro tunc designation "[w]here a federal sentence was imposed before a state sentence").
b. Prior Custody Credit
The application of prior custody credit toward a federal sentence is governed by 18 U.S.C. § 3585(b), which states:
Credit for prior custody--A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences-
18 U.S.C. § 3585(b) (emphasis added).(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.
The Supreme Court has found that under Section 3585(b), "Congress made clear that a defendant could not receive a double credit for his detention time." Wilson, 503 U.S. at 337. Accordingly, prior custody credit cannot be granted if the prisoner had received credit toward another sentence. See United States v. Brown, No. 91-5877, 1992 WL 237275, at *1 (4th Cir. Sept. 25, 1992) ("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").
A portion of the petitioner's request for 24-months prior custody credit towards his federal sentence includes time spent in pretrial custody on his state charges—from November 15, 2005, to March 1, 2006 (see doc. 1-1 at 4-5). As argued by the respondent, the petitioner is not entitled to this credit under Section 3585(b). Specifically, state court records indicate that he received 136 days pretrial detention credit towards his state sentence for the time period spanning from November 15, 2005, to March 1, 2006 (see doc. 11-3, Stopps decl. ¶ 9 & attach. 1). Similarly, the petitioner, although technically not receiving prior custody credit pursuant to Section 3585(b), effectively received prior custody credit towards his federal sentence through Judge Jarvey's 255-month sentence, despite the fact Section 3585(b) prohibits the awarding of double credit. See Wilson, 503 U.S. at 337 ("Congress made clear that a defendant could not receive a double credit for his detention time.").
Further, to the extent the petitioner's request for 24-months prior custody credit towards his federal sentence includes a request for the period of time spent in IDOC custody serving his state sentence from March 2, 2006 (the day after his state sentencing) to June 12, 2006 (the date the USMS "borrowed" him from IDOC custody on a writ of habeas corpus ad prosequendum), he is not entitled to such credit under Section 3585(b). He received credit toward his IDOC state commitment for the unlawful delivery of cocaine offense from state authorities for the time spent in IDOC custody (see doc. 11-3, Stopps decl. ¶¶ 9, 13). In addition, when he was sentenced on the federal charge, the petitioner effectively received a federal credit as well when Judge Jarvey credited him "for the seven months he served" in the IDOC by sentencing him to 255 months when he was facing a minimum guideline sentence of 262 months (see docs. 11-7, 11-8).
The petitioner contends that he "should be credited for . . . time spent in federal custody while borrowed from the state by federal government on an habeas corpus ad prosequendum for related cases involving the same conduct" (doc. 1 at 8). As argued by the respondent, the petitioner cannot receive credit for this time. While it is true he was physically in federal custody for a portion of the 24-month period of time for which he now seeks credit—specifically, June 12, 2006, to December 10, 2007— "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." Williamson v. Pettiford, C.A. No. 8:07-3739-HMH-BHH, 2008 WL 2076664, at *3 n.5 (May 2008) (citing Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir. 1992)). As explained in Thomas, a writ of habeas corpus ad prosequendum means only that the prisoner "is merely 'on loan' to federal authorities" during that time frame. 962 F.2d at 361 n.3. As a result, Section 3585(b) prohibits awarding prior custody credit under these circumstances as doing so would violate the prohibition on double credit. See Wilson, 503 U.S. at 337 ("Congress made clear that a defendant could not receive a double credit for his detention time."). Accordingly, the petitioner is not entitled to prior custody credit under Section 3585(b).
IV. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, this court recommends that the respondent's motion (doc. 11) be granted and that the petition be dismissed.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge October 4, 2018
Greenville, South Carolina
Notice of Right to File Objections to Report and Recommendation
The 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 committee's note).
Specific 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 Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).