Scott v. United States of America

Filing 13

MEMORANDUM AND ORDER denying the petition for habeas corpus. Signed by District Judge John W. Lungstrum on 8/3/2017. Mailed to pro se party Charlie Scott by regular mail. (# 1 Attachment) (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHARLIE SCOTT,
Petitioner,
v.

CASE NO. 17-3062-JWL

NICOLE ENGLISH, Warden,
USP-Leavenworth,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner is a military prisoner designated for service of
his sentence in the custody of the federal Bureau of Prisons (“BOP”).
In this action, he alleges the U.S. Army and the BOP improperly
calculated his sentence, failed to credit his sentence with earned
abatement days and good conduct time, and failed to establish a
mandatory parole date.
Factual Background
Petitioner is serving a 40-year military sentence. United States
v. Scott, 51 M.J. 326 (C.A.A.F. 1999). At sentencing, he was credited
with 325 days for time spent in confinement prior to the court-martial
proceedings.
Petitioner began serving his sentence at the United States
Disciplinary Barracks at Fort Leavenworth, Kansas (“USDB”), and was
transferred to the BOP on September 15, 2000, upon the resolution of
his military appeals.

While held at the USDB, petitioner appeared before the
Disciplinary and Adjustment Board on multiple occasions for
disciplinary violations. As a result of disciplinary decisions, he
forfeited a total of 465 days of Statutory Good Conduct Time (“GCT”).1
In 2005, petitioner sought the restoration of the forfeited time,
and the Commandant, USDB, restored 30 days of GCT.2
Petitioner’s military sentence is calculated annually. The most
recent calculation, done on September 30, 2016, set his maximum
release date at January 26, 2035, and his minimum release date at
January 27, 2021.3
Analysis
The general habeas corpus statute, 28 U.S.C. § 2241, authorizes
the federal courts to grant habeas corpus relief to a person held “in
violation of the Constitution or law or treaties of the United States.”
28 U.S.C. § 2241(c)(3). A petition under § 2241 challenges “the
execution of a sentence rather than its validity and must be filed
in the district where the petitioner is confined.” Brace v. United
States, 634 F.3d 1167, 1169 (10th Cir. 2011).
Under an interagency Memorandum of Agreement between the U.S.
Army and the BOP4, upon a military prisoner’s transfer to the BOP, the
USDB remains responsible for sentence computation and clemency
action. The BOP is responsible for housing and parole actions.5

1

See Doc. #11, Attach. 1, pp. 93-126.
Id.
3
Id., p. 6.
4
See Doc. #11, Attach. 4.
5
See Doc. #11, Attach. 6, BOP Program Statement 5110.16, Administration of Sentence
for Military Inmates, (Sep. 13, 2011).
2

Sentence Calculation
The calculation of a military sentence is governed by Army
Regulation (“AR”) 633-30, Military Sentences to Confinement6. The
current version, dated March 28, 1989, was in effect at the time of
petitioner’s conviction.
A military sentence to confinement commences on the date the
sentence is adjudged and runs continuously until the term expires.
A military prisoner earns deductions, or abatements, from a sentence
for good conduct, for participating in programming, and for employment
while confined.7
Military prisoners sentenced after May 31, 1951, to a term of
over 10 years earn 10 days of GCT per month.8 This abatement is reviewed
annually by the Army Corrections Command.
GCT may be forfeited if the prisoner violates institutional rules
or commits an offense while confined. The forfeiture of GCT extends
the prisoner’s minimum release date by the number of days forfeited.
Forfeited GCT may be restored by the commanding officer of the
installation where the prisoner is held9.
AR 633-30 defines the maximum release date on a military sentence
as “[t]he day preceding the date determined by adding the full term
of the sentence to the beginning date of the sentence.”10 Abatement
time is applied to reduce the maximum release date.11

6

See Doc. #11, Attach. 9, (full text of AR 633-30).
Id., Sect. I, GENERAL, Par. 6, Abatements.
8
Id., Sect. III, SENTENCES ADJUDGED ON OR AFTER 31 MAY 1951, Par. 13. Rate of
abatement for good conduct.
9
Id., Sect. I, Par. 7, Forfeiture of abatements.
10
Id., par. 2c.
11
Id., par. 4a.
7

Petitioner’s 40-year sentence began on December 18, 1995.12 He
was awarded 325 days for time spent in pretrial confinement, and his
original maximum release date was calculated as January 26, 2035, 40
years less 325 days. Petitioner also was credited with the entire
amount of GCT he could earn during his sentence, 4800 days, resulting
in a minimum release date of December 5, 2021.
Due to petitioner’s disciplinary infractions, he forfeited 465
days of GCT; as noted, 30 days of that time was restored. Although
petitioner challenges this forfeiture, arguing broadly that he was
improperly disciplined13, the records in this matter show adverse
disciplinary findings on eleven occasions. In May 2016, in response
to a second request for restoration of forfeited GCT, the Department
of the Army advised petitioner of the proper procedure for that request
and provided a detailed description of the forfeitures imposed.14
There is no evidence that petitioner has obtained any additional
restoration of forfeited GCT, and the Court finds no error in the
adjustment based upon the 435 days of forfeited GCT.
Abatement Days for Work
Each type of military abatement credit is calculated separately.
GCT credit is automatically applied to a prisoner’s sentence, unless
it is forfeited; however, credit for working while incarcerated is
dependent upon the prisoner’s authorization to maintain a qualifying

12

The most recent calculation of petitioner’s sentence appears at Doc. #11, Attach.
1, p. 6. The Expiration Table Numbers shown are taken from Tables appended to the
current version of AR 633-30/AFR 125-30. The relevant tables appear as attachments
to this Memorandum and Order.
13
Petitioner’s institutional disciplinary history also was addressed in an earlier
habeas corpus action in which he challenged action by the U.S. Parole Commission.
Scott v. Eiechenlaub, 2011 WL 834004 at *4 (N.D. Fla. Mar. 4, 2011).
14
See Doc. #11, Attach. 1, pp. 93-126 and pp. 135-136.

position15.
AR 633-60 allows a military prisoner confined in a disciplinary
barracks to earn extra good time for employment in industries, work
projects, or other activities or assignments. A military prisoner held
in a federal penal institution may earn extra good time at the rate
and conditions established by the United States Department of Justice.
Extra good time credits reduce the period of confinement on an actual
day basis.16 This abatement is calculated by a review of the number
of days a prisoner has worked in an approved job during confinement.
The maximum number of days available is 5 days per month.
Petitioner has earned 747 abatement days by working in an
approved job during his confinement.17 Contrary to his argument, the
sentence calculation sheet shows that this abatement was applied in
the September 2016 sentence calculation.18 The Court finds no error
in the application of abatement credit.
Mandatory Parole Release
Petitioner argues that “[a]s a military prisoner” he is “entitled
to a two-thirds mandatory release date.”19 Due to petitioner’s
transfer to the custody of the BOP, parole determinations concerning
his case are made by the U.S. Parole Commission under its policies
and procedures. AR 15-1370 provides that “[p]risoners transferred to
Federal facilities are under the control of the U.S. Parole Commission
unless otherwise designated in writing. As such, Federal and
Commission policies and procedures apply, not those of this
15
16
17
18
19

Doc. #11, Attach. 9, AR 633-30, par. 2a(2)(defining “extra good time”).
See Doc. #11, Attach. 9, p. 6, par. 6b.
Doc. #11, Attach. 1, p. 6.
Id.
Doc. #2, p. 1.

regulation.”20
Accordingly, the U.S. Parole Commission will determine
petitioner’s eligibility and suitability for parole. Finally, as
respondent notes, this argument is premature because petitioner has
not yet served two-thirds of his 40-year term.
Conclusion
After careful review of the record, the Court finds no ground for
habeas corpus relief. The calculation of petitioner’s sentence is
supported by the record, and his claim concerning a two-thirds parole
date is premature and subject to determination by the U.S. Parole
Commission.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is denied.
IT IS SO ORDERED.
DATED:

This 3rd day of August, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. District Judge

20

Doc. #11, Attach. 10, AR 15-1370, par. 3-e1(9).