Scott v. United States of America
MEMORANDUM AND ORDER ENTERED: Petitioner's motion for reconsideration 15 is construed as a motion to alter or amend and is denied. Signed by District Judge John W. Lungstrum on 08/16/17. Mailed to pro se party Charlie Scott by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 17-3062-JWL
NICOLE ENGLISH, Warden,
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner’s Motion for
Reconsideration and Notice of Intent to Appeal (Doc. #15).
Petitioner is a military prisoner now incarcerated in the custody
of the federal Bureau of Prisons (BOP). He filed this petition for
habeas corpus under 28 U.S.C. § 2241 challenging the calculation of
his sentence and the failure to establish a mandatory parole date.
On August 3, 2017, the Court issued a Memorandum and Order denying
the petition for habeas corpus (Doc. #13). The Court found that
petitioner’s sentence was properly calculated under Army Regulation
(AR) 633-60 and that due to petitioner’s transfer to the custody of
the BOP, determinations concerning his parole would be determined by
the U.S. Parole Commission under its policies and procedures.
In his motion for reconsideration, petitioner seeks a court order
to explain the difference between the projected release date
calculated by the government and the date he calculated. (Doc. #15,
A party subject to an adverse judgment may “file either a motion
to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) or a
motion seeking relief from the judgment pursuant to Fed.R.Civ.P.
60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.
1991). A motion to alter or amend must be filed within twenty-eight
days after the judgment is entered. See Fed.R.Civ.P. 59(e). The Court
construes petitioner’s motion as a timely motion to alter or amend.
The grounds warranting relief under Rule 59(e) include: “(1) an
intervening change in the controlling law, (2) new evidence that was
previously unavailable, and (3) the need to correct clear error or
prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000)(citing Brumark Corp. v. Samson Resources
Corp., 57 F.3d 941, 948 (10th Cir. 1995)).
The petitioner seeks an explanation for the discrepancy between
the projected minimum release date calculated by military
authorities, December 5, 2021, and the projected minimum release date
petitioner himself has calculated, “on or about July 9, or 10, 2020”
(Doc. #12, Attach. 1, Ex. A.)
The Court has examined the record and finds the petitioner erred
in calculating his 40-year sentence by multiplying the number of years
by 360 days, a figure yielding a total of 14,400 days to be served.
Under AR 633-30, a military prisoner’s sentence is calculated
using a Table of Consecutive Days, which is developed “taking into
consideration the varying number of days in each month, including leap
years.” (Doc. #11, Attach. 9, AR 633-30, Section IV, TABLE OF
CONSECUTIVE DAYS, par. 15, Use of Table.)1.
Accordingly, the September 9, 2016, sentence computation
prepared for petitioner begins on December 18, 1995, the date sentence
was adjudged, and assigns the corresponding Expiration Table Number
The actual number of days occurring in a 40-year term, rather
than the 360-day year used by petitioner, is added to establish the
length of the sentence. Here, the sentence computation sheet assigns
the Expiration Table Number 339553, a span of 14610 days, or 40 years
multiplied by 365.25 days. From that figure, adjustments are made to
the sentence to reflect earned good conduct time, other abatement
credit, and forfeitures. Petitioner does not contest those
adjustments, and they do not require additional discussion.
The Court finds no reason to alter or amend the judgment and will
deny the motion. Petitioner’s motion states that in the alternative,
he gives notice of his intent to appeal. (Doc. #15, p. 2.) The Court
advises petitioner that Federal Rules of Appellate Procedure require
the filing of a notice of appeal and address the required contents.
See Fed.R.App.P. 3. In addition, petitioner should submit either the
appellate filing fee of $505.00 or a motion for leave to proceed in
forma pauperis to the clerk of the court.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
reconsideration (Doc. #15) is construed as a motion to alter or amend
and is denied.
The Court notes that at least one portion of AR 633-30, Section II, SENTENCES
ADJUDGED PRIOR TO 31 MAY 1951, par. 12, Method of Computation, states that in
converting the amount of good conduct time a military prisoner can earn, “years are
assumed to consist of 360 days and months of 30 days.” Id., p. 6. That calculation,
however, is distinct from the calculation of a sentence.
A copy of the relevant expiration table was attached to the Court’s Memorandum
and Order (Doc. #13, Attach. p. 1.)
See id. at p. 2.
IT IS SO ORDERED.
day of August, 2017, at Kansas City, Kansas.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. District Judge
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