United States District Court, E.D. North Carolina, Western Division
No. Jean-Gabriel Bernier, Petitioner,
Warden Holland, Respondent.
ORDER & MEMORANDUM & RECOMMENDATION
T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
Jean-Gabriel Bernier, a federal inmate proceeding pro se, seeks
relief from this court under 28 U.S.C. § 2241. This
matter is currently before the court on Respondent
Holland's motion for summary judgment (D.E. 9). Also
before the court are Bernier's motion for judicial notice
(D.E. 17) and motion for hearing (D.E. 19). After reviewing
the parties' submissions, the court allows Bernier's
motion for judicial notice and denies his request for a
hearing. And the undersigned recommends that the district
court grant Holland's summary judgment motion and dismiss
enforcement officers in New York arrested Bernier in June
1990 for bank robbery and criminal possession of a weapon.
Johnson Aff. ¶ 4, D.E. 12-1. Federal authorities later
also initiated armed robbery and firearm related charges
against Bernier in the Southern District of New York. See
United States v. Bernier, No. 1:90-cr-00653-RWS-1
(S.D.N.Y. filed Oct. 4, 1990). In July1990, the United States
Marshals Service took Bernier into temporary custody for one
day under a writ of habeas corpus ad prosequendum. Johnson
Aff. ¶ 5, D.E. 12-1. The Marshals Service took temporary
custody of Bernier again in September 1990 for further
proceedings on his federal charges. Id. ¶ 6.
found Bernier guilty of his federal charges. Id.
¶ 7. On June 11, 1991, United States District Judge
Robert W. Sweet sentenced Bernier to 35 years imprisonment.
Resp't. Ex. 3, D.E. 12-4. Among other things, this
sentence included two counts of using a firearm during the
commission of a crime of violence, in violation of 18 U.S.C.
§ 924(c). Id. Judge Sweet imposed a five-year
sentence on the first § 924(c) violation, and a
twenty-year sentence on the second, ordering that he serve
them consecutively. Id. at 3. On June 21, 1991, the
Marshals Service returned Bernier to the primary custody of
state authorities, and lodged a detainer based on the federal
judgment. Resp't. Ex. 1, D.E. 12-2.
January 16, 1992, the Supreme Court of New York County
sentenced Bernier to twelve and a half to twenty-five years
imprisonment on his state charges. Resp't. Ex. 4, D.E.
12-5. Bernier's state sentence ran consecutively with his
federal sentence. Id.
thereafter, New York state authorities erroneously
transferred Bernier into federal custody. Johnson Aff. ¶
10, D.E. 12-1. In February 1992, the Federal Bureau of
Prisons (“BOP”) accepted Bernier and incarcerated
him at the United States Penitentiary in Lewisburg,
Pennsylvania. Id. ¶ 11. The BOP realized this
mistake in April 2003 and transferred Bernier back into the
physical custody of New York state authorities. Id.
then instituted an action in New York, seeking credit for his
time in federal custody towards his state sentence.
See Resp't. Ex. 9, D.E. 12-10. After conferring
with the BOP, the New York Department of Corrections
(“NYDOC”) credited all of the time from June 26,
1990 until May 6, 2003 towards Bernier's state sentence.
Resp't. Ex. 2, D.E. 12-3. In doing so, the NYDOC also
certified that Bernier was in state custody during this time.
correctly took physical custody of Bernier on June 18, 2015,
after the completion of his state sentence. Johnson Aff.
¶ 16, D.E. 12-1. In September 2015, Bernier sought a
nunc pro tunc designation of his time spent in state custody,
under BOP Program Statement 5160.05. Resp't. Ex. 12, D.E.
fully considered this request. First, the BOP contacted Judge
Sweet to determine his position on Bernier's nunc pro
tunc request. In consulting with Judge Sweet, the BOP stated
that “[s]hould the Court indicate [Bernier's
federal] sentence is to run concurrent with the state term,
the [BOP] will commence the sentence in above judgment on
October 1, 2006, to maintain to the integrity of . . . 18
U.S.C. § 924(c). This would result in . . .
Bernier's release from custody on or about March 29,
2037.” Resp't. Ex. 13, D.E. 12-14. Judge Sweet
responded to the BOP by entering an order retroactively
declaring Bernier's federal sentence concurrent with his
state sentence. Bernier, No. 1:90-CR-00653, (D.E.
20) (S.D.N.Y. October 15, 2015). In his order, Judge Sweet
did not address the BOP's caveat about §
with contacting Judge Sweet, the BOP also completed a work
sheet, fully analyzing these considerations: (1) the
resources of the facility contemplated for nunc pro tunc
designation; (2) the nature and circumstances of
Bernier's federal and state offenses; and (3)
Bernier's personal history and characteristics.
Resp't. Ex. 15, D.E. 12-16. The BOP also reiterated its
policy determination to maintain the integrity of §
924(c). Id. at 2. The BOP relied particularly on
§ 924(c)(D)(ii) which states “no term of
imprisonment imposed on a person under this subsection shall
run concurrently with any other term of imprisonment imposed
on the person.” See Johnson Aff. ¶¶
23, D.E. 12-1. Based on that language, the BOP determined
that Bernier's § 924(c) convictions were “to
be served consecutively to all other counts and thus could
not be served concurrently to [his] state sentence.”
Id. ¶ 22.
considering these factors, the BOP partially allowed
Bernier's request for a nunc pro tunc designation. The
BOP allowed Bernier to serve the 10-year portion of his
sentence that was unrelated to § 924(c) concurrently
with his state sentence. Id. Bernier's 25-year
federal sentence for his violations of § 924(c),
however, would continue to run consecutively to his state
sentence. Id. Because of this determination, the BOP
changed the commencement date of Bernier's federal
charges to October 1, 2006. Id.; Resp't. Ex. 16,
D.E. 12-17. Doing so changed Bernier's projected release
date from December 2045 to March 2037. Johnson Aff.
¶¶ 17, 23; Resp't Ex. 11, D.E. 12- 12;
Resp't Ex. 16, D.E. 12-17.
filed this petition in November 2017, alleging the BOP
miscalculated his release date (D.E. 1). In February 2018,
United States District Judge James C. Dever III dismissed
Butner Federal Medical Center
(“Butner”) as a respondent and then allowed the
petition to proceed (D.E. 4). Respondent moved for summary
judgment in April 2018 (D.E. 9). Bernier responded (D.E. 16)
and respondent replied (D.E. 18). Along with his response
Bernier moved for judicial notice (D.E. 17), in which he
essentially seeks to amend his pleadings. Later, Bernier
filed a motion requesting a hearing on his petition (D.E.