United States District Court, E.D. North Carolina, Western Division
C. Dever III United States District Judge
February 11, 2019, Magistrate Judge Numbers issued a
Memorandum and Recommendation ("M&R"), and
recommended granting respondent's motion for summary
judgment [D.E. 9] and dismissing Jean Bernier's
("Bernier") 28 U.S.C. § 2241 petition [D.E.
25]. On February 19 and 22, 2019, Bernier filed objections to
the M&R [D.E. 26, 27].
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Tns. Co., 416 F.3d 310,
315 (4th Cir. 2005) (emphasis, alteration, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a timely
objection, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation." Diamond, 416 F.3d at 315 (quotation
omitted). Moreover, the court need not conduct de novo review
if a party makes "general and conclusory objections that
do not direct the court to a specific error in the
magistrate's proposed findings and recommendations."
Orpiano v Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
"Section 636(b)(1) does not countenance a form of
generalized objection to cover all issues addressed by the
magistrate judge; it contemplates mat a party's objection
to a magistrate judge's report be specific and
particularized, as the statute directs the district court to
review only those portions of the report or specified
proposed findings or recommendations to which objection is
made." United States v. Midgette, 478 F.3d 616,
621 (4th Cir. 2007) (quotation and emphasis omitted).
argues that the BOP erred in determining the commencement
date of his sentence and that his federal sentence commenced
in February 1992. See [D.E. 26] 1-2; [D.E. 27] 1-2. Bernier
also contends that the BOP erred in the "mine pro tune
determination pursuant to 18 U.S.C. § 3621(b)."
Id. at 1; see [D.E. 27] 2.
Bernier's first objection, New York authorities arrested
Bernier on June 26, 1990, for bank robbery. See Johnson Aff.
[D.E. 12-1] ¶ 4. During the pendency of Bernier's
state charges, federal authorities brought armed robbery and
firearm charges against him in the United States
District Court for the Southern District of New York. See 14
¶ 5. On July 30, 1990, and on September 14, 1990, the
United States Marshals Service took Bernier into temporary
custody to permit Bernier to attend preliminary proceedings
for his federal charges in the Southern District of New York.
See Id. ¶¶ 5-6. Bernier eventually
proceeded to trial in the Southern District of New York and
was found guilty. See Ex. 3 [D.E. 12-4] 2.
11, 1991, the Southern District of New York sentenced Bernier
to an aggregate term of 35 years' imprisonment. See
Johnson Aff. [D.E. 12-1] ¶ 7; Ex. 3 [D.E. 12-4] 3. After
sentencing, the Marshals Service returned Bernier to the
primary custody of New York authorities, and lodged a
detainer based on the federal judgment. See Ex. 1 [D.E.
12-2]. On January 16, 1992, the Supreme Court of New York
County sentenced Bernier to between 12.5 and 25 years'
imprisonment on his state charges. See Ex. 4 [D.E. 12-5]. The
Supreme Court of New York County ordered Bernier's state
sentence to run consecutively to his federal sentence. See 14
On January 28, 1992, New York authorities erroneously
transferred Bernier into the physical custody of the Federal
Bureau of Prisons ("BOP"). See Johnson Aff. [D.E.
12-1] ¶ 10. From February 1992 until April 2003, the BOP
housed Bernier in Lewisberg, Pennsylvania. See id ¶ 11.
On April 18, 2003, after New York and the BOP realized the
mistake, the BOP transferred Bernier back to the custody of
New York authorities. See Id. ¶¶ 12-13.
The New York Department of Corrections credited to
Bernier's state sentence all of the time that Bernier
erroneously spent in the physical custody of the BOP. See Ex.
2, [D.E. 12-3].
18, 2015, after Bernier completed his state sentence, the BOP
took custody of Bernier. See Johnson Aff. [D.E. 12-1] ¶
16; Ex. 8 [D.E. 12-9]. On September 15, 2015, under BOP
Program Statement 5160.05, Bernier sought a nunc pro tune
designation of his time spent in state custody. See Johnson
Aff. [D.E. 12-1] ¶ 18; Ex. 12 [D.E. 12-13]. On November
2, 2015, the BOP notified Bernier that, after a thorough
review of Bender's case and the relevant factors
enumerated in 18 U.S.C. § 3621(b), the BOP decided to
grant in part and deny in part his request. See Johnson Aff.
[D.E. 12-1] ¶¶ 18-24. Specifically, the BOP
permitted Bernier to serve a 10-year portion of his federal
sentence that was unrelated to his sentence for violating 18
U.S.C. § 924(c) to run concurrently with his state
sentence. See Id. However, the BOP denied
Bernier's request as to the 25-year consecutive portion
of his federal sentence for violating 18 U.S.C. §
924(c). See Id. ¶ 23. Accordingly, the BOP
determined that Bender's federal sentence commenced on
October 1, 2006, and that his projected release date is March
29, 2037, and not December 14, 2045. See id ¶¶ 18,
24; Ex. 11 [D.E. 12-12]; Ex. 16 [D.E. 12-17].
Bender's objection concerning the date on which his
federal sentence commenced, New York retained primary custody
of Bernier between January 28, 1992, and April 18, 2003. See
United States v. Cole. 416 F.3d 894, 896-97 (8th
Cir. 2005); Thomas v. Deboo, No. 2:09cv134, 2010 WL
1440465, at *4 (N.D. W.Va. Mar. 8, 2010) (erroneous
designation to a federal facility does not operate to
commence a defendant's federal sentence or waive a
state's primary jurisdiction), report and
recommendation adopted. 2010 WL 1440693 (N.D. W.Va. Apr.
8, 2010), affd. 403 Fed.Appx. 843 (4th Cir. 2010)
(per curiam) (unpublished). Bender's erroneous transfer
to the physical custody of the BOP did not transfer primary
jurisdiction. See, e.g.. Thomas. 403 Fed.Appx. at
843; Yeary v. Masters. No. 1:14-19114, 2016 WL
5852865, at *3-5 (S.D. W.Va. Sept 30, 2016) (unpublished)
(collecting cases); see also United States v. Evans.
159 F.3d 908, 912 (4th Cir. 1998) ("[F]ederal custody
commences only when the state authorities relinquish the
prisoner on satisfaction of the state obligation.").
Moreover, New York has credited this time against
Bender's state sentence, and it cannot be credited
against his federal sentence. See 18 U.S.C. § 3585(b);
Rash v. Stansberry, No. 3:10CV836-HEH, 2011 WL
2982216, at *4 (E.D. Va. July 22, 2011), aff'd. 460
Fed.Appx. 201 (4th Cir. 2011) (per curiam) (unpublished);
Neal v. Drew, No. 2:09-0244-PMD-RSC, 2009 WL
6254710, at *4 (D.S.C. Nov. 5, 2009), adopted by,
2010 WL 1254873 (D.S.C. Mar. 23, 2010). Accordingly, the
court overrules Bender's first objection.
also argues that the BOP erred in partially denying his
request for a mine pro tune designation. See, e.g..
[D.E. 27] 6. The BOP may apply a mine pro tune designation if
the BOP designates a non-federal facility as the place of
confinement for a prisoner's federal sentence when, at
the time of the prisoner's federal sentencing, the
prisoner was in custody at a non-federal facility. See
Barden v Kftnhurm; 921 F.2d 476, 481-82 (3d Cir. 1990);
see also Evans. 159 F.3d at 911-12. The factors
relevant to the BOP's determination are codified at 18
U.S.C. § 3621(b). The BOP has "broad
discretion" in reviewing requests for mine pro tune
designation. Barden, 921 F.2d at 478, 481-82; see
Abdul-Malilr y. Hawk-Sawver, 403 F.3d 72, 75 (2d
Cir. 2005). The BOP fully considered the section 3621(b)
factors, including the view of the federal court that
sentenced Bender, and did not abuse its discretion by
partially denying Bernier's request. See Johnson Aff.
[D.E. 12-1] ¶¶ 19-23; Exs. 12-15 [D.E. 12-16].
the court OVERRULES Bernier's objections [D.E. 26, 27],
ADOPTS the conclusions in the M&R [D.E. 25], GRANTS
respondent's motion for summary judgment [D.E. 9], and
DISMISSES Bernier's petition. The court DENIES a
certificate of appealability. See 28 U.S.C. § 2253(c);
Miller-El v. Cockrell,537 U.S. 322, 336-38 ...