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Bernier v. Holland

United States District Court, E.D. North Carolina, Western Division

February 11, 2019

No. Jean-Gabriel Bernier, Petitioner,
v.
Warden Holland, Respondent.

          ORDER & MEMORANDUM & RECOMMENDATION

          ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE

         Petitioner Jean-Gabriel Bernier[1], 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 Bernier's petition.

         I. Background

         Law 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.

         A jury 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.

         On 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.

         Shortly thereafter, New York state authorities erroneously transferred Bernier into federal custody. Johnson Aff. ¶ 10, D.E. 12-1.[2] 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. ¶¶ 12-13.

         Bernier 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. Id.

         The BOP 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. 12-13.

         The BOP 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 § 924(c).[3]

         Along 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.

         After 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.

         Bernier 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”)[4] 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. 19).

         II. ...


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