* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

August 7, 2003

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

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
2

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
3

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