Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nunez v. Warden, Federal Correctional Institution, Berlin

United States District Court, D. New Hampshire

September 4, 2018

Jose Nunez
v.
Warden, Federal Correctional Institution, Berlin, New Hampshire

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE

         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).

         Background[1]

         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. 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 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 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, [2] 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 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.