United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE
John Charles Kenney is a federal inmate confined at the
United States Penitentiary - McCreary in Pine Knot, Kentucky.
Proceeding pro se, Kenney has filed a motion under
Federal Rule of Civil Procedure 59(e) [R. 18], seeking
reconsideration of the Court's June 28, 2017 Memorandum
Opinion & Order [R. 15] in which the Court denied his 28
U.S.C. § 2241 habeas petition. [R. 1.] Kenney has also
filed an Emergency Motion for Expedited Review [R. 17] and
Motion to Amend or Supplement his § 2241 Petition [R.
§ 2241 habeas petition, Kenney requested to be released
from custody immediately, arguing that the Bureau of Prisons
(“BOP”) has improperly calculated his release
date because it is not giving him credit for seventeen months
that he spent in custody from November 5, 1991, until March
23, 1993. [R. 1; R. 1-1 at 3, 7.] The Court denied
Kenney's petition based on Kenney's admissions that
he failed to pursue, much less exhaust, his administrative
remedies. [R. 15 at 3-4.] The Court considered Kenney's
argument that pursuit of his administrative remedies would be
futile (1) because he should have already been released and
(2) because the BOP has indicated a “strong”
position on the issue of his sentence that it was unwilling
to reconsider. [R. 15 at 5-6.] However, the copy of a
Sentence Monitoring and Computation Data sheet from the
BOP's Designation and Sentencing Computation Center
submitted with Kenney's petition was insufficient to
indicate that the BOP has evidenced a strong position on
Kenney's sentence together with an unwillingness to
reconsider. [Id.] As there was nothing in the record
to support Kenney's argument that his pursuit of his
available administrative remedies would be futile,
Kenney's petition was denied without prejudice as
prematurely filed. [Id. at 5-7.]
may grant relief under Rule 59(e) only where there is
“(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.” Am.
Civil Liberties Union of Ky. v. McCreary Cnty., Ky., 607
F.3d 439, 450 (6th Cir. 2010). Kenney's motion does not
satisfy any of these criteria. Instead, it merely presents
the same grounds for relief asserted in his original
petition. [R. 18.]
Kenney's motion purports to present further explanation
of his reasons for not pursuing his administrative remedies,
he simply re-states his previous argument that exhausting his
remedies would be futile in light of the BOP's
predetermination of his sentence. [R. 18 at 1-2.] The
Sentencing Monitoring and Computation Data sheet that Kenney
provides in support of his argument does not help his case.
The sheet simply shows the BOP's current calculation of
Kenney's sentence; it gives no indication of the
BOP's position on Kenney's arguments that its
calculations are incorrect. Therefore, despite Kenney's
recent filings, the Court finds he has still failed to show
that the BOP has taken such a strong position on his sentence
that it is unwilling to reconsider its calculation and that,
therefore, exhaustion would be futile.
Kenney's argument that the Court erred in dismissing his
petition without requiring a response from the respondent is
without merit. The Court has authority to screen § 2241
petitions for writ of habeas corpus pursuant to 28 U.S.C.
§ 2243 and to deny petitions without requiring a
response “if it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to
relief.” Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts (applicable to
§ 2241 petitions pursuant to Rule 1(b)). Here, Kenney
admits in his petition that he did not pursue, much less
exhaust, his administrative remedies. [R. 1 at 7-8.] In light
of this, a response from the respondent was not required
prior to dismissal. See Shah v. Quintana, No.
17-5053 at 3-4 (6th Cir. Jul. 7, 2017) (explaining that
although a district court may not sua sponte dismiss a
§2241 petition at the screening stage for failing to
plead exhaustion or failure to attach exhibits with proof of
exhaustion, the court may sua sponte dismiss a
§ 2241 petition where lack of exhaustion is apparent
from the face of the pleading).
party simply disagrees with a district court's
conclusions, the appropriate vehicle for relief is appeal,
not a motion to alter or amend a judgment. Graham ex rel.
Estate of Graham v. County of Washtenaw, 358 F.3d 377,
385 (6th Cir. 2004) (explaining a motion to alter or amend
judgment is not vehicle for obtaining post-judgment
re-argument on issues already decided). Because Kenney has
failed to satisfy the requirements for relief under Rule
59(e), the Court will deny his motion to reconsider.
light of the fact that Kenney's motion to reconsider must
be denied, Kenney's Emergency Motion for Expedited Review
[R. 17] will be denied as moot. Additionally, Kenney's
remaining motions, including the Motion to Amend or
Supplement 2241 Petition [R. 19]; Second Emergency Motion [R.
24]; Motion for Preliminary Injunction [R. 25]; and Third
Emergency Motion [R. 26] merely re-state the arguments set
forth in Kenney's initial § 2241 petition and the
subsequent motion to reconsider. Because the motions are
duplicative, they will also be denied.
the Court hereby ORDERS as follows:
1. Kenney's Motion for Reconsideration pursuant to
Federal Rule of Civil Procedure 59(e) [R. 18] is
DENIED for the reasons set forth in this
2. Kenney's Emergency Motion for Expedited Review [R. 17]
is DENIED AS MOOT; and
3. Kenney's remaining motions [R. 19; R. 24; R. 25; R.
27] are DENIED as duplicative in light of