Kuban v. Lynch et al

Filing 10

MEMORANDUM OPINION & ORDER: 1. The Clerk of the Court shall SUBSTITUTE Warden Jodie L. Snyder-Norris as the sole respondent in this proceeding. 2. Kuban's third motion to expand the record DE 9 is GRANTED. 3. Kuban's petition for writ of habeas corpus DE 1 is DENIED. 4. The Court will enter an appropriate judgment. 5. This matter is STRICKEN from the active docket. Signed by Judge Henry R. Wilhoit, Jr on 6/15/17.(KSS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
KENNETH KUBAN,

)
)
)
)

Petitioner,

v.

Civil No. 16-52-HRW

)
)
)
)
)

JODIE L. SNYDER-NORRIS,
Respondent.

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
Federal inmate Kenneth Kuban has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 to challenge the determination by the Bureau of Prisons
("BOP") that his offenses of conviction preclude him from receiving a reduction in
his sentence under its Residential Drug Abuse Program ("RDAP"). 1 [D. E. No. 1]
I

In 2012 and 2013, Kuban engaged in a pattern of harassment of his former
girlfriend. Specifically, Kuban created multiple accounts on Craigslist from his
work computer as an employee of the Library of Congress, and posing as his former

1

Kuban named former U.S. Attorney General Loretta Lynch and Acting Director
of the BOP Thomas Kane as the respondents in this proceeding [D. E. No. 1 at l],
but the correct respondent is the warden of the facility where the petitioner is
confined. Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Court will order the
appropriate substitution.

girlfriend,

posted

numerous

advertisements

soliciting spontaneous

sexual

encounters. In response to e-mail inquiries from random men, Kuban (still posing
as his former girlfriend), expressed interest in meeting and provided them with her
home address. As a result, many men travelled across state lines and showed up at
her doorstep seeking sexual congress, causing her severe emotional distress and
placing her in great fear for her safety.
In March 2013, Kuban was arrested and charged with cyberstalking in
violation of 18 U.S.C. §§ 2261A(l), 226l(b)(5)-(6), unlawful use of the
identification of another in violation of 18 U.S.C. §§ 1028(a)(7), 1028(b)(2)(B), and
interstate domestic violence and violation of a protective order in violation of 18
U.S.C. §§ 2262(a)(l), 2262(b)(5). Pursuant to a written plea agreement, Kuban was
sentenced to a 66-month term of imprisonment. United States v. Kuban, No. 3: 13CR-8 (W.D. Va. 2013).
While in federal custody, Kuban completed the RDAP program, making him
potentially eligible for a one-year reduction in his sentence pursuant to 18 U.S.C.

§ 362l(e)(2)(B). However, the BOP concluded that his conviction for cyberstalking
prevented it from granting any reduction in his sentence. In its view, his offenses
under Sections 2261, 2261 A were disqualifying because "by its nature or conduct,
[it] presents a serious potential risk of physical force against the person or property

2

of another." [D. E. No. 7-2 at I (citing 28 C.F.R. § 550.55(b )(5)(iii))] In his petition,
Kuban challenges the correctness of that determination.
II

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C.
§ 2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir.
2011 ). A petition will be denied "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)). The Court evaluates Kuban's petition under a more
lenient standard because he is not represented by an attorney. Erickson v. Pardus,
551 U.S. 89, 94 (2007). At this stage of the proceedings, the Court accepts the
petitioner's factual allegations as true and construes all legal claims in his favor. Bell
Atlantic C01p. v. Twombly, 550 U.S. 544, 555-56 (2007).
By statute, Congress requires the BOP to provide alcohol and drug treatment
programs to federal inmates. 18 U.S.C. § 3621 (b ). The law also provides inmates
with incentives to complete them:
The period a prisoner convicted of a nonviolent offense remains in
custody after successfully completing a treatment program may be
reduced by the Bureau of Prisons, but such reduction may not be more
than one year from the term the prisoner must otherwise serve.

3

18 U.S.C. § 362l(e)(2)(B). Because the statute does not define what constitutes a
"nonviolent offense," the BOP has promulgated regulations to define that term and
to establish guidelines for participation. 28 C.F.R. § 550.55.
Section 550.55(b) provides that inmates who have committed certain kinds of
offenses may not receive a reduced sentence at all. These include, but are not limited
to, those who have committed an offense that "by its nature or conduct, presents a
serious potential risk of physical force against the person or property of another."
Section 550.55(b)(5)(iii). The BOP has also issued an internal policy document
which sets forth a comprehensive list of all federal offenses which will categorically
exclude the inmate from a sentence reduction. BOP Program Statement 5162.05
(Mar. 16, 2009). Among these are 18 U.S.C. § 2261 and § 2261A; Kuban stands
convicted of both.
First, to the extent that the BOP's decision to deny Kuban a reduction in his
sentence is based upon an individualized determination that (1) Kuban is not eligible
to receive a sentence reduction because his convictions under Sections 2261 and
2261A were not for "nonviolent offenses," or (2) Kuban is not suitable to receive
such a reduction based upon his conduct in prison or performance in completing the
RDAP, this Court lacks the authority to review that conclusion. 18 U.S.C. § 3625
categorically excludes from judicial review discretionary decisions made by the
BOP pursuant to 18 U.S.C. § 3621-3624, which includes RDAP eligibility and

4

suitability determinations made under 18 U.S.C. § 362l(e)(2)(B). Reeb v. Thomas,
636 F. 3d 1224, 1226-28 (9th Cir. 2011) (holding that 18 U.S.C. § 3625 precludes
judicial review of individualized RDAP determinations); Taukeiaho v. rVands, No.
I 1-CV-1255-LTB-MJW, 2011WL6012545, at *2 (D. Colo. Nov. 15, 2011).
Second, although Kuban's petition does not expressly challenge the BOP's
determination on constitutional grounds, any such challenge would fail as a matter
of law.

Cf. Standifer v. Ledezma, 653 F.3d 1276, 1279 (10th Cir. 2011) (no

constitutional right to participate in RDAP).
Third, to the extend Kuban's petition can be read as asserting a categorical
challenge to the BOP's regulations, including those at issue here, the Supreme Court
upheld them long ago in Lopez v. Davis, 531 U.S. 230 (2001). Lopez had been
convicted of only one offense, possession with intent to distribute methamphetamine
in violation of21 U.S.C. § 841, but when the trial comi found that he had possessed
a firearm in connection with his drug trafficking, it enhanced his sentence by two
levels pursuant to U.S.S.G. § 2Dl.l(b)(l). Lopez filed a habeas corpus petition
under§ 2241, and the district court granted relief, concluding that the BOP could
not consider uncharged conduct - his possession of a firearm - as a basis to
categorically exclude him from eligibility for a sentence reduction. On appeal the
Eighth Circuit disagreed, concluding that the BOP may look at sentencing factors,

5

not just convictions, to determine if the prisoner's offenses were "nonviolent." Id.
at 236-37.
Before the Supreme Co mi, the BOP argued that while ( 1) conviction of a
nonviolent offense and (2) completion of the RDAP were necessary conditions for
sentence reduction eligibility, they were not sufficient conditions because
§ 3621(e)(2)(B) expressly stated only that the BOP "may" grant a sentence reduction
if they were satisfied. Lopez, 531 U.S. at 239-240. The Supreme Comi agreed,
concluding that the BOP reasonably exercised its discretion in its implementing
regulations:
[T]he statute's restriction of early release eligibility to nonviolent
offenders does not cut short the considerations that may guide the
Bureau. .. . the Bureau may consider aspects of the conduct of
conviction, even though the conviction is a criterion of statutory
eligibility.

Id. at 243. Thus Lopez, whose drug trafficking offense did not itself necessarily
involve violent conduct, could be categorically excluded from eligibility based upon
his possession of a firearm in furtherance of that offense.
Following Lopez, comis have consistently found that the BOP may
categorically exclude prisoners convicted of offenses whose elements do not, of
themselves, necessarily entail violence or the threat of it in their commission, but
whose conduct nonetheless "displayed a readiness to endanger another's life."

Lopez, at 240. Cf. Ard1y v. Rios, 215 F. App'x 776 (10th Cir. 2007); Richardson v.
6

Joslin, 501 F. 3d 415, (5th Cir. 2007); see also Taukeiaho, 2011WL6012545, at *3
("the BOP has not exceeded its statutory authority by creating a category of inmates
ineligible for early release pursuant to section 550.SS(b)(S)(iii) and PS 5162.05

§ 4.b."); Palm v. Walton, No. 11-10957, 2013 WL 119701, at* 1-3 (E.D. Mich. Jan.
9, 2013); Wood v. Ziegler, No. 5: 11-450, 2012 WL 5497910, at *2-3 (S.D. W.Va.
Aug. 20, 2012). 2
Finally, Kuban refers to the Supreme Court's decision in Johnson v. United

States,_ U.S._, 135 S. Ct. 2551 (2015), which held that the residual clause found
in 18 U.S.C. § 924(e)(2)(B) is unconstitutionally vague. [R. 1 at 3-4] Kuban does
not make any express argument under Johnson at all, but the Court takes his
reference to imply that Johnson somehow rendered Section 550.SS(b)(S)(iii)
inoperable or void. The language of the invalidated statute, which refers to "conduct
that presents a serious risk of physical injury to another," is similar but not identical
to that found in the regulation, which describes conduct that "presents a serious
potential risk of physical force against the person or property of another."

2

The Court notes parenthetically that the actions for which Kuban was indicted,
and to which he pled guilty, included sending anonymous men - all possessed of the
erroneous belief that his victim would engage in sexual relations with them unquestionably qualifies as conduct that "by its nature or conduct, presents a serious
potential risk of physical force against the person or property of another" within the
meaning of Section 550.SS(b)(S)(iii).
7

But comparing and contrasting the language of the provisions would be a
pointless intellectual exercise. It is true that"[ a] fundamental principle in our legal
system is that laws which regulate persons or entities must give fair notice of conduct
that is forbidden or required." F.C.C. v. Fox Television Stations, Inc.,_ U.S._,
132 S.Ct. 2307, 2317 (2012). But the BOP's internal regulation is neither a criminal
statute nor a civil penalty statute, and hence does not proscribe or limit a citizen's
conduct at all. Accordingly, by definition it cannot be unconstitutionally vague. Cf.

Gonzales v. Carhart, 550 U.S. 124, 148-49 (2007) ("As generally stated, the voidfor-vagueness doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.") (quoting Ko/ender v. Lawson, 461 U.S. 352, 357 (1983)).

Cf.

Gilmore v. Gonzales, 435 F. 3d 1125, 1135 (9th Cir. 2006) (holding identification
policy not susceptible to void for vagueness claim where failure to comply cannot
result in the imposition of sanctions). Because Section 550.55(b)(5)(iii) does not
proscribe conduct and its application cannot result in the imposition of a longer
criminal sentence, it is not susceptible to a vagueness challenge, whether under

Johnson or its precursors.

8

Accordingly, IT IS ORDERED that:
I.

The Clerk of the Court shall SUBSTITUTE Warden Jodie L. Snyder-

Norris as the sole respondent in this proceeding.
2.

Kuban's third motion to expand the record [D. E. No. 9] is GRANTED.

3.

Kuban's petition for a writ of habeas corpus [D. E. No. l] is DENIED.

4.

The Court will enter an appropriate judgment.

5.

This matter is STRICKEN from the active docket.

This 15th day of June, 2017.

9