United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM, U.S. DISTRICT JUDGE.
matter comes before the Court on petitioner's Motion for
Reconsideration and Notice of Intent to Appeal (Doc. #15).
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.
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.
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, p. 1).
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.
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.
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.
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. Id.
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.).
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 19345. 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 33955, 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
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