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Kuban v. Snyder-Norris

United States District Court, E.D. Kentucky, Northern Division, Ashland

June 15, 2017

KENNETH KUBAN, Petitioner,
v.
JODIE L. SNYDER-NORRIS, Respondent.

          MEMORANDUM OPINION AND ORDER

          Henry R. Wilhoit Jr. Judge

         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 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(1), 2261(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)(1), 2262(b)(5). Pursuant to a written plea agreement, Kuban was sentenced to a 66-month term of imprisonment. United States v. Kuban, No. 3:13-CR-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. § 3621(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, 2261A were disqualifying because "by its nature or conduct, [it] presents a serious potential risk of physical force against the person or property of another." [D. E, No. 7-2 at 1 (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. Parcius, 551 US. 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 Corp, 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.

18 U.S.C. § 3621(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 § 2261 A; 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 suitability determinations made under 18 U.S.C. § 3621(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. Wands, No. 11~CV-1255-LTB-MJW, 2011 WL 6012545, 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 ...


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