United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE
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).
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. 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).
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.
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 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.
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.
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
his transfer to federal custody, Nunez requested that the BOP
grant him a “nunc pro tunc designation” of the
NYDOC as 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,  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 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 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.
“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 ...