Kent Hovind v. FCI Berlin Order

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Kent E. Hovind v. FCI Berlin

Civil No. 14-cv-62-JL

O R D E R

The petitioner, Kent E. Hovind, is serving a ten-year sentence at the Federal Correctional Institute in Berlin, New Hampshire, following his conviction on all counts of a 58-count indictment. The indictment charged that Hovind: willfully failed to deduct and pay federal income and withholding taxes for employees of his business, Creation Science Evangelism Enterprises, in violation of 26 U.S.C. § 7202; structured the business’s cash withdrawals, totaling more than $1.5 million over a four- or five-year period, into increments of less than $10,000 to avoid federal reporting requirements, in violation of 31 U.S.C. § 5324; and obstructed the administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a). See United States v. Hovind, 305 Fed. App’x 615 (11th Cir. 2008) (affirming Hovind’s convictions and sentence on direct appeal).

Hovind, proceeding pro se, has filed a petition in this court for a writ of habeas corpus, invoking 28 U.S.C. § 2241. The petition is before this court for preliminary review under Rule 4 of the Rules Governing Section 2254 Proceedings for the United States District Courts (which are applied to § 2241 petitions under Rule (1)(b) of those Rules), as well as L.R. 4.3(d)(4), to determine whether it plainly appears from the petition and its exhibits that Hovind is not entitled to the relief he seeks.

The Bureau of Prisons (“BOP”) has recommended that Hovind serve the last six months of his incarcerative sentence in home confinement, but has declined to transfer him to a residential re-entry center (“RRC”), also known as a community correctional facility (“CCF”) or “halfway house,” for the six months prior to that (i.e., the first six months of the final twelve months of his sentence). Hovind points out that the Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657, directs the BOP “to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into society. Such conditions may include a [CCF].” Id. tit. II, subtit. C, ch. 3, § 251, 122 Stat. at 692, codified at 18 U.S.C. § 3624(c)(1). Hovind also invokes U.S.C. § 3621(b), under which the BOP “shall designate the place of [a] prisoner’s imprisonment” as “any available penal or correctional facility. . . that the Bureau determines to be appropriate and suitable, considering” five enumerated factors.

As a consequence, Hovind argues, “each individual inmate’s pre-release RRC decision must be analyzed and supported under the five-factor criteria” set forth in § 3621(b), “with the understanding that he/she is now eligible for a maximum of 12 months pre-release RRC placement” under § 3624(c). What is missing from Hovind’s petition, however, is any allegation that the BOP failed to do so in recommending that he complete the incarcerative portion of his sentence with six months of home confinement, rather than six months at an RRC followed by six months of home confinement.

To the contrary, in rejecting Hovind’s administrative appeal from this decision, which was originally made by his “Unit Team” at FCI-Berlin, the BOP stated that the team had “considered [Hovind’s] individual situation, programming, and transitional needs pursuant to the [] criteria” set forth in § 3621(b), which the statement identified as relevant considerations under the Second Chance Act. Likewise, in explaining the decision of the “Unit Team,” the warden of FCI-Berlin wrote that they had relied on Hovind’s “strong family ties, lack of substantial transitional needs, and overall low risk assessment” in recommending he serve six months of home confinement without first serving six months in a halfway house. Hovind, who has attached these materials to his petition, makes no claim that the BOP did not, in fact, consider the § 3621(b) criteria. Instead, he cites to a BOP

memorandum from April 2008 (just after the Second Chance Act took effect) stating that “inmates’ pre-release RRC needs can usually be accommodated by a placement of six months or less,” as well as alleged public comments by the BOP’s director in July 2008 that “any time in an RRC beyond six months is not productive.”

Whatever these statements indicate about the BOP’s attitude toward RRC placements in general, however, that view plainly had no impact on the BOP’s decision as to where Hovind should serve the last twelve months of his incarcerative sentence. The BOP did not assign Hovind to an RRC for six months--it assigned him to home confinement for six months. And § 3624(c)(2) specifically provides that “[t]he authority under this subsection may be used to place a prisoner for home confinement for the shorter of ten percent of the term of imprisonment of that prisoner or 6 months.” The only restriction that § 3624(c) places on the exercise of that authority is that the BOP, “to the extent practicable, ensure[s] that [the] prisoner. . . spends a

portion of the final months of that term (not to exceed 12 months) under conditions that will afford that prisoner a reasonable opportunity to adjust for and prepare for the reentry of that prisoner into the community.”

As the Court of Appeals has remarked in interpreting the prior version of this statute (which limited these “conditions” to 6 rather than 12 months), § 3624(c) gives the BOP “virtually unlimited discretion to place inmates wherever it deems appropriate,” provided it “considers the five factors” set forth in § 3621(b). Muniz v. Sabol, 517 F.3d 29, 40 (1st Cir. 2008) (quotation marks omitted). Again, Hovind does not allege that the BOP failed to consider those factors, nor does he allege that its resulting decision to assign him to six months of home confinement, rather than six months in an RRC followed by six months of home confinement, represents an abuse of this “virtually unlimited discretion.”

Accordingly, while 28 U.S.C. § 2241 gives this court jurisdiction to consider a petition for a writ of habeas corpus claiming that the BOP has violated 18 U.S.C. §§ 3621(b) or 3624(c) in determining how the petitioner will serve the last year of his incarcerative sentence, see id., Hovind’s petition fails to make any such claim. Because it appears from the petition and its exhibits, then, that Hovind is plainly not entitled to relief from the BOP’s decision to assign him to six

months in home confinement without first assigning him to six months in a halfway house, the petition is dismissed. SO ORDERED.

Joseph N. Laplante United States District Judge Dated: April 16, 2014 cc: Kent E. Hovind, pro se Seth R. Aframe, AUSA