Nunez v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jose Nunez
v. Case No. 16-cv-129-JL
Warden, Federal Correctional
Institution, Berlin, New Hampshire
REPORT AND RECOMMENDATION
Jose Nunez, an inmate at the Federal Correctional
Institution in Berlin, New Hampshire, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming
that the Federal Bureau of Prisons (“BOP”) has incorrectly
calculated the amount of time he must spend in federal custody.
Before this magistrate judge for a report and recommendation is
respondent’s motion for summary judgment, see Doc. No. 10, to
which Nunez objects, see Doc. Nos. 13, 14.
Summary Judgment Standard
Summary judgment is warranted where “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); see also
Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.
2016). “An issue is ‘genuine' if it can ‘be resolved in favor
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of either party,’ and a fact is ‘material’ if it ‘has the
potential of affecting the outcome of the case.’” Xiaoyan Tang,
821 F.3d at 215 (citations omitted); see also Commodity Futures
Trading Comm’n v. JBW Capital, 812 F.3d 98, 105 (1st Cir. 2016)
(“[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” (emphasis in original)).
Background1
On January 14, 2003, Nunez was sentenced in a New York
state court to two consecutive six-year terms of incarceration.
See Resp’t’s Mot. Summ. J., Decl. of Forest Kelly (“Kelly
Decl.”), Attach. 2 (Doc. No. 10-2, at 4, 6). Nunez was awarded
pretrial credit of ten months and three days. According to a
document that appears to have been generated by the New York
Department of Corrections (“NYDOC”), entitled
“Reception/Classification System Legal Date Computation,” the
maximum expiration date of Nunez’s state sentence was March 29,
2014, and his conditional release date was July 9, 2012. See
1The facts that the court recites in this section are
undisputed, except as otherwise noted.
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Kelly Decl., Attach. 8 (Doc. No. 10-2, at 25).
Shortly after he was sentenced in state court, Nunez was
transferred to federal custody, through a federal writ of habeas
corpus ad presequendum, to face charges in the Southern District
of New York (“SDNY”). On March 19, 2004, Nunez pleaded guilty
to two federal offenses in the SDNY, and was sentenced to serve
consecutive prison terms on the federal charges as follows: (1)
a thirty-six month (three-year) prison term for committing a
violent crime in aid of racketeering, see 18 U.S.C. §
1959(a)(6); and (2) an eighty-four month (seven-year) term of
incarceration for possession and brandishing a weapon in
furtherance of a crime of violence, see 18 U.S.C.
§ 924(c)(1)(A)(ii). See Kelly Decl., Attach. 5 (Doc. No. 10-2,
at 12-13). The SDNY further ordered that the three-year federal
sentence would be served concurrently with the twelve-year state
prison sentence Nunez was then serving, and that the seven-year
federal sentence would be served consecutive to that state
sentence. See id.
On June 15, 2009, Nunez pleaded guilty to a new state
charge of first degree “promoting prison contraband,” and was
sentenced by the state court to serve one-and-a-half to three
years in state prison. See Pet., Ex. A (Doc. No. 1, at 13-14);
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Kelly Decl., Attach. 6 (Doc. No. 10-2, at 21). The state court
judge in the contraband case directed that the contraband
sentence be served consecutively to the twelve-year state prison
sentence Nunez was then serving, but concurrently with the
seven-year federal sentence, which was also consecutive to the
twelve-year sentence. See Pet., Ex. A (Doc. No. 1, at 13-14);
Kelly Decl., Attach. 6 (Doc. No. 10-2, at 21).
On December 23, 2013, Nunez’s guilty plea and sentence on
the first degree contraband charge were vacated, and Nunez
entered a new plea to a second degree contraband charge, and was
resentenced to “time served.” See Kelly Decl., Attach. 7 (Doc.
No. 10-2, at 23). On January 9, 2014, shortly after the “time
served” plea was entered, Nunez was paroled from the NYDOC,
having satisfied all of his New York state sentences, and was
transferred to federal custody, where he has remained since that
date. Kelly Decl. at 2. BOP then granted Nunez’s request for a
nunc pro tunc designation, such that the BOP, after the fact,
designated the time Nunez spent in the custody of the NYDOC from
May 30, 2011 until January 9, 2014 (a period of thirty-one
months and ten days),2 against, and in full satisfaction of, the
2The parties have not explained the factors that led the BOP
to conclude that to a thirty-one month, ten day period of state
incarceration effectively discharged the three year federal
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three-year portion of Nunez’s federal sentence, and concluded
that Nunez began serving his seven-year consecutive federal
sentence on January 9, 2014. See BOP Appeal Resp. (Doc. No. 1,
at 17-18).
Discussion
I. Applicable Law
A. Concurrent and Consecutive Sentences
A federal court has the discretion to order that multiple
terms of imprisonment run concurrently or consecutively when the
court is sentencing a defendant already subject to an
undischarged term of imprisonment. See 18 U.S.C. § 3584(a).
Here, the SDNY sentenced Nunez to the three-year portion of his
federal sentence, to be served concurrently with the previously
imposed twelve-year state sentence, to be followed by the seven-
year portion of the federal sentence.
B. Designation of State Facility for Service of Sentence
The BOP has the authority to designate the place where a
federal sentence shall be served, and it may designate a state
sentence. This court need not address that issue, however, as
the propriety of using thirty-one months and ten days as the
period of time necessary to discharge the three-year sentence is
undisputed.
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institution for that purpose after the fact. See 18 U.S.C.
§ 3621(b). “Judicial review of the BOP’s decision to grant a
nunc pro tunc designation of a state facility for service of a
federal sentence is limited to abuse of discretion.” Ysabel v.
Sabol, 645 F. Supp. 2d 37, 39 (D. Mass. 2009).
In his § 2241 petition, Nunez challenges the May 30, 2011
start date of the BOP’s nunc pro tunc designation for the
commencement of Nunez’s thirty-six month federal sentence, and
the calculation of Nunez’s potential release date based thereon.
Nunez asserts that his state twelve-year sentence ended on July
9, 2012, and not on January 9, 2014 (eighteen months later), the
date BOP selected when it granted Nunez’s request for a nunc pro
tunc designation. The practical effect of Nunez’s argument is
that his consecutive, seven-year federal sentence would be
completely discharged eighteen months sooner, if July 9, 2012
were set as the date when Nunez had finished serving the three-
year portion of his federal sentence.
Respondent argues in the motion for summary judgment that
Nunez’s twelve-year state sentence was discharged on January 9,
2014. If that statement were true, BOP’s nunc pro tunc
decision, using January 9, 2014 as the end-date of Nunez’s
three-year federal sentence (with the state prison designated as
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the place where Nunez served that portion of his federal
sentence), could not be deemed to be an abuse of discretion.
Such a determination would be consistent with the SDNY order,
and would also be consistent with BOP guidance, which provides,
in pertinent part, as follows:
When a federal judge orders or recommends a federal
sentence run concurrently with a state sentence already
imposed, the Bureau implements such order or
recommendation, ordinarily by designating the state
facility as the place to serve the federal sentence.
BOP Program Statement 5160.05(7)(c) (Doc. No. 10-2, at 34).
The record before this court does not allow this court to
find, however, that Nunez was released from his twelve-year
state sentence on January 9, 2014. In response to Nunez’s
administrative appeal of his challenge to BOP’s nunc pro tunc
designation, Ian Connor, Administrator, National Inmate Appeals
stated that Nunez could not be given credit for eighteen months
Nunez served on his contraband sentence between July 9, 2012 and
January 9, 2014, because 18 U.S.C. § 3585(b) and BOP Program
Statement (“BOP PS”) 5880.28 prohibit the BOP from granting an
inmate credit for a sentence imposed after his federal
sentencing, and not anticipated by the federal sentencing court,
if that time has been “credited against another sentence.” BOP
Appeal Resp. (Doc. No. 1, at 17). Connor explained, as follows:
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The 18 months of credit you seek from your original state
release date of July 9, 2012, until your adjusted parole
date of January 9, 2014, was time spent in service of
another sentence. Your additional state sentence was
ordered to run consecutive to your existing state sentence,
resulting in a later release date from state custody as
well as a new release date from federal custody.
Doc. No. 1, at 18. Connor appears to have concluded the
eighteen months from July 9, 2012 to January 9, 2014 had been
credited against the “time-served” contraband sentence, which
had been imposed and served consecutive to the twelve-year
sentence. None of the state court documents or any self-
authenticating NYDOC document filed by respondent as attachments
to the summary judgment motion clarifies whether January 9, 2014
is also the date on which Nunez was released from his twelve-
year sentence. Cf. Exhibits (Doc. No. 10-2), attached to Decl.
of Forest Kelly (Doc. No. 10-1).
Respondent’s brief does not present any argument as to why
the BOP did not abuse its discretion in basing its nunc pro tunc
determination on a January 9, 2014 release date, if July 9, 2012
was in fact the date when Nunez was released from his twelve-
year state sentence. In other words, there is no briefing here
addressing whether the BOP had the discretion to neglect to
implement the part of the SDNY’s order, effectively keying the
start of Nunez’s seven-year sentence to the end of Nunez’s
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twelve-year state sentence, assuming July 9, 2012 was the end of
that sentence. This court declines to undertake an analysis of
that issue in the first instance here, in the absence of
briefing from the United States on that question, and in the
absence of documents of evidentiary quality, clarifying
precisely when Nunez was released from his twelve-year state
sentence, which could make that analysis unnecessary.
Accordingly, the district judge should deny respondent’s motion
for summary judgment (Doc. No. 10) on Nunez’s petition, without
prejudice to either party’s ability to rebrief the pertinent
issues.
Conclusion
For the foregoing reasons, the court recommends that the
district judge deny the respondent’s motion for summary judgment
(Doc. No. 10), without prejudice to respondent’s ability to file
a new motion for summary judgment, providing properly-
authenticated NYDOC documents, an affidavit, or other documents
of evidentiary quality, to establish when Nunez’s twelve-year
sentence ended, and, if the evidence shows that Nunez’s twelve-
year sentence was discharged prior to January 9, 2014, providing
argument and citations to authority as to whether the BOP had
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the discretion to use January 9, 2014 as the date when Nunez was
released from his twelve-year state sentence, in calculating the
start of Nunez’s seven-year federal sentence. Any objections to
this Report and Recommendation must be filed within fourteen
days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2).
The fourteen-day period may be extended upon motion. Failure to
file specific written objections to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R. Civ. P.
72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
July 24, 2017
cc: Jose Nunez, pro se
Seth Aframe, Esq.
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