CLD-150                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3252
                                       ___________

                                HOWARD O. KIEFFER,
                                             Appellant

                                             v.

                            WARDEN ALLENWOOD USP
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 1-14-cv-01547)
                      District Judge: Honorable John E. Jones, III
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 19, 2016
            Before: FISHER, JORDAN and VANASKIE, Circuit Judges


                            (Opinion filed: February 25, 2016)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Howard O. Kieffer, a federal prisoner proceeding pro se, appeals from the District

Court’s order denying his motion for relief from the dismissal of his habeas petition. We

will affirm.

       Kieffer was convicted in federal courts in North Dakota and Colorado of charges

arising from his unlicensed operation of a criminal law practice. He was sentenced to 51

months in prison by the North Dakota District Court, and this sentence was affirmed.

United States v. Kieffer, 621 F.3d 825, 827 (8th Cir. 2010). He was subsequently

sentenced by the Colorado District Court to 57 months in prison, to run consecutive to his

North Dakota sentence. The case was remanded for resentencing because the court erred

in making the sentence consecutive. See United States v. Kieffer, 681 F.3d 1143, 1167-

68, 1172 (10th Cir. 2012). On remand, the court orally resentenced Kieffer to 99 months

in prison to run concurrent with the North Dakota sentence, stating that its intent was to

have Kieffer serve an additional 48 months in prison. See United States v. Kieffer, 596

F. App’x 653, 657 (10th Cir. 2014), cert. denied, 135 S. Ct. 2825 (2015). The court

memorialized the oral sentence in a First Amended Judgment, stating “the Court adjusted

the ninety-nine (99) months by subtracting the fifty-one (51) months already served in

[North Dakota], for a remaining sentence of forty-eight (48) months.” Id. (alteration in

original). The Bureau of Prisons (“BOP”) interpreted this judgment as imposing only a

48-month sentence and began processing Kieffer for release. See id.

       The Colorado District Court then issued a series of further amended judgments in

an attempt to clarify its intent that Kieffer serve 48 months in addition to his North
                                              2
Dakota sentence, for a total Colorado sentence of 99 months. Id. at 657-59. Kieffer

challenged the amended judgments in the Tenth Circuit and also filed a habeas petition

pursuant to 28 U.S.C. § 2241 in the Middle District of Pennsylvania,1 arguing that the

oral sentence imposed a term of 48 months (that had already expired) and that the BOP

erred by recalculating his sentence pursuant to the further amended judgments. See

Kieffer v. Warden, 616 F. App’x 464, 466 (3d Cir.) (per curiam), cert. denied, 136 S. Ct.

561 (2015).

         While Kieffer’s § 2241 petition was pending, the Tenth Circuit vacated the

amended judgments and remanded for the Colorado District Court to issue a new

judgment consistent with its oral sentence, i.e., a sentence of 99 months less 11 months

served on the North Dakota sentence, for a resultant sentence of 88 months. See United

States v. Kieffer, 596 F. App’x at 661-62. The court issued a judgment in accordance

with that mandate, and Kieffer’s subsequent appeal was unsuccessful. See United States

Kieffer, No. 15-1078, 2016 U.S. App. LEXIS 1652, at *9, *12 (10th Cir. Feb. 1, 2016).

         After the Tenth Circuit vacated the amended judgments and remanded for a new

judgment consistent with the oral sentence, the Middle District of Pennsylvania dismissed

Kieffer’s § 2241 petition for lack of jurisdiction, reasoning that it was an attack on the

validity of the Colorado District Court’s amended judgments. We affirmed to the extent

Kieffer’s petition was construed as a challenge to the amended judgments. See Kieffer v.

Warden, 616 F. App’x at 466. We also acknowledged that Kieffer’s petition could be


    1
        At the time he filed his § 2241 petition,3Kieffer was confined in Pennsylvania.
construed as challenging the execution of his sentence because he argued that his oral

sentence was for a term of 48 months that had already expired. Id. at 466-67. However,

we deemed that argument to lack merit, given that the Tenth Circuit had already rejected

it. Id. at 467.

        Several months after our decision, Kieffer filed a “Motion for Reconsideration

and/or Relief from Final Judgment of Dismissal (Fed R. Civ. P. 60(B)),” in the District

Court, purporting to have new evidence for the court’s consideration: the BOP’s

recalculation of his sentence pursuant to the Colorado District Court’s new judgment on

remand. However, the essence of Kieffer’s motion was, once again, his argument that he

had received an oral sentence of 48 months that is superior to any written judgment. The

District Court summarily denied the motion, noting that we had already affirmed its

dismissal of Kieffer’s § 2241 petition. This appeal followed.

        We have jurisdiction pursuant to 28 U.S.C. § 1291. If no substantial question is

presented, we may affirm on any ground supported by the record. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6; Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

        We construe Kieffer’s motion as seeking relief pursuant to Federal Rule of Civil

Procedure 60(b)(2), which allows a litigant to obtain relief from a final judgment based

on “newly discovered evidence.”2 A movant “bears a heavy burden” under this rule,


    2
     Although Kieffer sought reconsideration, he cited Rule 60(b) and expressly relied
on newly discovered evidence as the basis for his motion. Furthermore, he filed his
motion after the 28-day deadline in Rule 59(e) for motions for reconsideration.

                                             4
Plisco v. Union R.R. Co., 379 F.2d 15, 17 (3d Cir. 1967), and must show that the new

evidence is material, could not have been discovered earlier, and “would probably have

changed the outcome” of the proceedings, Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir.

1991). In general, we review orders denying Rule 60(b) motions for an abuse of

discretion. See Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008).

       As noted above, Kieffer relies on the BOP’s recalculation of his sentence as newly

discovered evidence warranting relief because it states a term never used by the

sentencing court, i.e., 88 months. This is an utterly meritless contention. The Tenth

Circuit Court of Appeals ordered the Colorado District Court to issue a judgment

reflecting a sentence of 88 months, see 596 F. App’x at 661-62, and it recently rejected

Kieffer’s argument that the 88-month sentence is invalid. See 2016 U.S. App. LEXIS

1652 at *6-9. Furthermore, Kieffer’s motion is essentially an attempt to relitigate his

contention that he received an oral sentence of 48 months. This position has been

rejected by this Court and the Tenth Circuit. See id. at *8-9; Kieffer v. Warden, 616 F.

App’x at 467; United States v. Kieffer, 596 F. App’x at 661. A Rule 60(b) motion may

not be used as a means of seeking review of our prior decisions. See Reform Party v.

Allegheny Cty. Dep’t of Elections, 174 F.3d 305, 312 (3d Cir. 1999) (en banc).

       In sum, it is apparent that Kieffer has failed to offer anything that would have

changed the outcome of his § 2241 proceedings. Rule 60(b)(2) relief was therefore not




                                             5
warranted, and the District court acted within its discretion when it denied Kieffer’s

motion.3 Accordingly, we will summarily affirm the District Court’s order.




    3
      To the extent that Kieffer also sought relief under Rule 60(b)(1) and (6), he failed to
show any mistake that called the validity of the prior judgment into doubt or any
“extraordinary circumstances where, without [Rule 60(b)] relief, an extreme and
unexpected hardship would occur.” Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir.
1993).

                                             6
