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Scott v. English

United States District Court, D. Kansas

August 3, 2017

CHARLIE SCOTT, Petitioner,
v.
NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM U.S. DISTRICT JUDGE.

         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 BOP[4], 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]

         Sentence Calculation

         The calculation of a military sentence is governed by Army Regulation (“AR”) 633-30, Military Sentences to Confinement[6]. 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 ...


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