Nunez v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jose Nunez
v. 	Civil No. 16-cv-129-JL
Warden, Federal Correctional
Institution, Berlin, New Hampshire
REPORT AND RECOMMENDATION
Jose Nunez, a federal prisoner serving his sentence at the
Federal Correctional Institution in Berlin, New Hampshire, filed
a petition for a writ of habeas corpus (Doc. No. 1), 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 the respondent’s “Renewed Motion
for Summary Judgment” (Doc. No. 17).
Background1
On January 14, 2003, Nunez was sentenced in a New York
state court to two consecutive six-year terms of incarceration
on burglary charges. 	See Jan. 14, 2003 Sentencing Order, People
v. Nunez, Nos. 810-2002, 2057-2002 (N.Y. Sup. Ct., N.Y. Cty.
1The facts that the court recites in this section are
undisputed, except as otherwise noted.
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Jan. 1, 2003) (Doc. No. 17-1, at 4-5). 	Nunez was given credit
against that sentence for 303 days he spent in pretrial
detention on the burglary charges. 	See Jan. 3, 2003 N.Y.C.
Dep’t of Corrs. Jail Time Certification (Doc. No. 17-1, at 6).
Shortly after he was sentenced in state court, Nunez was
transferred to federal custody 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 of and brandishing a weapon in
furtherance of a crime of violence, see 18 U.S.C.
§ 924(c)(1)(A)(ii). 	See Mar. 19, 2004 Sentencing Order, United
States v. Nunez, No. S11 02 CR 1082 (NRB) (S.D.N.Y. Mar. 19,
2004) (Doc. No. 10-1, at 12-19). 	The SDNY 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
consecutively to the twelve-year state sentence. 	See id.
On June 15, 2009, while still serving his twelve-year state
sentence, Nunez pleaded guilty to a new state charge of first
degree “promoting prison contraband,” and was sentenced by the
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state court to serve one-and-a-half to three years in state
prison. 	See June 15, 2009 Sentencing Order, People v. Nunez,
No. 2009-39 (N.Y. Sup. Ct., Chemung Cty. June 15, 2009) (Doc.
No. 17-1, at 7). 	The state court judge in that case directed
that Nunez serve the contraband sentence consecutively to the
twelve-year state prison sentence Nunez was then serving, but
concurrently with the seven-year federal sentence. 	See id.
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 Dec. 23, 2013 Am. Sentencing
Order, People v. Nunez, No. 2009-39 (N.Y. Sup. Ct., Chemung Cty.
Dec. 23, 2013) (Doc. No. 17-1, at 24). 	The record in this case
does not reveal the precise length of the “time served”
sentence.
On January 9, 2014, shortly after the “time served” plea
was entered, Nunez was paroled from the New York Department of
Corrections (“NYDOC”), having satisfied all of his New York
state sentences, and was transferred to federal custody, where
he has remained since that date. 	See Sept. 26, 2017 Letter of
Att’y Christine Lennard, Assoc. Counsel, NYDOC Office of
Sentencing Review (“Lennard Statement”) (Doc. No. 17-1, at 2).
After his transfer to federal custody, Nunez requested that
the BOP grant him a “nunc pro tunc designation” of the NYDOC as
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the place where he served his thirty-six month federal sentence
that was to run concurrently with his twelve-year state
sentence. 	See July 1, 2015 BOP Central Office Admin. Remedy
Appeal of Jose Nunez (Doc. No. 1, at 19). 	The BOP granted
Nunez’s request for a nunc pro tunc designation, such that the
BOP designated the time Nunez spent in the custody of the NYDOC
from May 30, 2011 until January 9, 2014, 	to fully satisfy the
three-year portion of Nunez’s federal sentence that the federal
judge had ordered to be concurrent with Nunez’s twelve-year
state sentence,3 and concluded that Nunez began serving his
seven-year consecutive federal sentence on January 9, 2014. 	See
Sept. 9, 2015 BOP Appeal Resp. of Ian Connors (Doc. No. 1, at
17-18).
§ 2241 Petition
In his § 2241 petition in this court, Nunez alleges that
from July 9, 2012 to January 9, 2014, he was serving the state
first degree/second degree contraband sentences, after he was
discharged from his twelve-year New York state sentence on July
9, 2012. 	Nunez argues the BOP is obliged to grant him a nunc
pro tunc designation beginning on July 9, 2012, eighteen months
3Respondent has explained that the period from May 30, 2011
until January 9, 2014 approximately equals the three-year
sentence minus good time credit Nunez would have received if he
had been serving that sentence in federal custody. 	See Resp.’s
Renewed Mot., at 1 n.1 (Doc. No. 17, at 1 n.1).
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earlier than the January 9, 2014 date BOP selected, since the
federal judge sentenced him to the three-year concurrent
sentence and a seven-year sentence that was consecutive to the
state sentence that ended July 9, 2012.
Respondent’s “Renewed Motion for Summary Judgment” (Doc.
No. 17), argues that BOP did not abuse its discretion in
granting Nunez a nunc pro tunc designation starting on January
9, 2014. 	This is the second time respondent has moved for
summary judgment in this case. 	The district judge denied the
respondent’s first motion without prejudice, see Aug. 10, 2017
Order (Doc. No. 16), approving the July 24, 2017 Report and
Recommendation (Doc. No. 15), which advised the parties that the
court had received no briefing on when Nunez had been released
from his twelve-year sentence, or as to whether BOP did not
abuse its discretion by selecting January 9, 2014 as the twelve-
year sentence’s release date, in lieu of July 9, 2012:
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 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
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evidentiary quality, clarifying precisely when Nunez
was released from his twelve-year state sentence,
which could make that analysis unnecessary.
Id. at 8-9 (emphasis added).
Attached to respondent’s renewed motion (Doc. No. 17) is a
letter signed by Attorney Christine Lennard, Associate Counsel
in the NYDOC Office of Sentence Review, which she subscribed to
be true under penalty of perjury, based upon the records she
reviewed. 	See Lennard Statement (Doc. No. 17-1, at 1).
Attorney Lennard states that she reviewed the NYDOC records
concerning Nunez attached to the letter. 	See Doc. No. 17-1.
Based on Attorney Lennard’s explanation and those records,
respondent maintains that Nunez was released from his twelve-
year sentence on January 9, 2014, approximately two months
before the expiration of the maximum term of that sentence.
Standard
“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). 	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'
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if it can ‘be resolved in favor 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).
Discussion
Attorney Lennard’s statement summarizes facts included in
the NYDOC records attached to her statement. 	According to
Lennard’s statement:
• 	When Nunez was initially received by the NYDOC in 2003, the
NYDOC determined that the maximum expiration date of his
twelve-year sentence was March 29, 2014; the earliest date
upon which Nunez could be conditionally released was July
9, 2012; and he could obtain a total of one year, eight
months, and twenty days of good time. 	These dates
correspond to the Feb. 14, 2003 “Reception/Classification
System Legal Date Computation” (“LDC”) record attached to
the Lennard Statement (see Doc. No. 17-1, at 14).
• 	After Nunez was sentenced to 1 1/2 to three years for his
first degree contraband conviction on June 15, 2009, the
NYDOC determined the “adjusted” maximum expiration date of
his aggregated sentence was September 29, 20156; his
“adjusted” conditional release date was January 9, 2014;
and he could obtain possible good time in the amount of one
year, eight months, and twenty days (less three months).7
6The minimum term of contraband sentence was added to the
term of the twelve-year sentence to arrive at an aggregate
maximum term of imprisonment under New York law. 	See NYPL
§ 70.30[d][1].
7Respondent has provided the court with a NYDOC “Report of
Time Allowance Committee Review” form indicating that, as to
Nunez’s twelve-year sentence, Nunez lost three months of his
possible good time, and had been granted one year, five months,
and twenty days of good time. 	See Doc. No. 17-1 at 23. 	This
deduction in good time accounts for the change in the NYDOC’s
calculation of Nunez’s conditional release date from July 9,
2012 to October 9, 2012.
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These dates correspond to the Oct. 21, 2009 LDC record
attached to the Lennard Statement (see Doc. No. 17-1, at
17).
After Nunez’s first degree contraband conviction and
sentence were vacated on December 23, 2013, the NYDOC
determined that Nunez’s maximum expiration date of his
twelve-year sentence was again March 29, 2014; his earliest
conditional release date reverted to October 9, 2012; and
his possible good time was one year, eight months, and
twenty days (less three months). 	These dates correspond to
the Dec. 24, 2013 and Jan. 6, 2014 LDCs attached to the
Lennard Statement (see Doc. No. 17-1, at 21-22)
Although the exhibits to respondent’s renewed motion for summary
judgment clarify that Nunez lost three months of good time,
extending his earliest possible conditional discharge date from
the twelve-year sentence until October 9, 2012, they do not show
that Nunez, between October 9, 2012 and January 9, 2014, was
still serving his 12-year state burglary sentence, and was not
serving his state contraband sentence.
To the contrary, the NYDOC records in this court’s record
indicate that January 9, 2014 was Nunez’s conditional release
date only during the period between June 2009 and December 2013
after he had received a sentence for first degree contraband and
before that sentence was vacated. 	After that sentence was
vacated, the NYDOC records dating from December 24, 2013 and
January 6, 2014 in this court’s record indicate that the state
agency once again calculated Nunez’s conditional release date
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from his twelve-year sentence to be October 9, 2012. 	See Doc.
No. 17-1, at 21, 22 (Dec. 24, 2013 LDC & Jan. 6, 2014 LDC).
The transcript of the state court’s December 23, 2013 plea
and sentencing hearing on Nunez’s second degree contraband
charge suggests that the parties in that proceeding believed
that Nunez in December 2013 had already served more than the
one-year maximum sentence on the second degree contraband
charge, see NYPL §§ 10.00[4], 205.20:
THE COURT: Okay. 	Attorney Rich [counsel for Nunez],
do you want to put on the record what your
understanding is of what’s going on here?
MR. RICH: Yes, your Honor. 	Mr. Nunez himself filed I
believe a motion to vacate judgment 	. . . quite some
time ago. 	We joined that motion and submitted a
memorandum ourselves.
There’s been lots of discussion between the Court, the
People and myself. 	My understanding is that there is
an agreement in place that would allow Mr. Nunez to
vacate the prior conviction or to withdraw his plea,
to re-enter a guilty plea to the misdemeanor charge of
promoting prison contraband in the second degree and
be sentenced to time served. 	He’s already served more
than the maximum sentence on that charge.
MR. SONSIRE [counsel for state]: That’s my
understanding as well. 	And that would be under Penal
Law 205.20, the promoting prison contraband . . . in
the second degree.
Dec. 23, 2013 Sent’g Hrg., Tr. at 2-3, People v. Nunez, No.
2009-39 (N.Y. Cty. Ct., Chemung Cty.) (Doc. No. 17-1, at 27-28)
(added). 	That transcript which is part of this court’s record
provides some evidence that counsel in that proceeding believed
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that Nunez had already begun to serve the contraband portion of
his sentence in 2012.
For these reasons, respondent has not established that it
is entitled to judgment as a matter of law as to whether BOP
acted within its discretion in using January 9, 2014 as the
starting date of Nunez’s nunc pro tunc designation, and not
October 9, 2012. 	Accordingly, the district judge should deny
the respondent’s renewed motion for summary judgment (Doc. No.
17), and order respondent, within fourteen days of the date of
the order denying that motion, to show cause why the petition
should not be granted.
Conclusion
For the foregoing reasons, the district judge should DENY
the respondent’s renewed motion for summary judgment (Doc. No.
17), and ORDER respondent, no later than fourteen days after the
date of that order, to show cause why Nunez’s 28 U.S.C. § 2241
habeas petition (Doc. No. 1) should not be granted.
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
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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
September 4, 2018
cc: 	Jose Nunez, pro se
Seth R. Aframe, Esq.
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