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United States v. Hovind

United States District Court, N.D. Florida, Pensacola Division

November 6, 2019

UNITED STATES OF AMERICA,
v.
KENT E. HOVIND

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court upon a document described by Defendant Hovind as a “Motion to Vacate” (ECF No. 492). Hovind's submission also includes what he has labeled a “Supporting brief to the above ‘Motion to Vacate, '”[1] a “Copy of court clerk[']s ‘No Sworn Complaint Found in Court Record, '” and a “Proof of Service” (see Id. at 8).

         Hovind cites no specific authority or jurisdictional basis for the instant filing, although he repeatedly refers to it as a “motion to vacate.” In the motion, he challenges his original conviction, making arguments about an alleged lack of jurisdiction and constitutional violations that allegedly occurred. Such arguments are properly made in a motion pursuant to 28 U.S.C. § 2255.[2]

         Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides in part that “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” After a review of the record, the undersigned concludes that the court does not have jurisdiction to entertain Defendant's motion and that it should be summarily dismissed.[3]

         BACKGROUND and ANALYSIS

         Defendant Kent E. Hovind and his wife Jo D. Hovind were charged in a fifty-eight (58) count indictment with tax crimes, financial structuring crimes, and obstruction of the administration of internal revenue laws, all related to their ownership and operation of a business in Pensacola, Florida (ECF No. 2). Kent Hovind was convicted as charged and sentenced to a total term of 120-months imprisonment (ECF Nos. 81, 85, 154). On appeal, the Eleventh Circuit rejected Hovind's challenges to the sufficiency of the indictment and the sufficiency of the evidence, among other things, and affirmed his conviction and sentence (ECF Nos. 318, 385, Ex. 1). The Supreme Court denied his petition for a writ of certiorari on November 6, 2009 (ECF No. 333).

         In March of 2010, Hovind filed five separate motions pursuant to Federal Rule of Civil Procedure 60(b) seeking dismissal with prejudice of his criminal judgment (ECF Nos. 334-338). After response by the Government (ECF No. 341), the district court denied all five of these motions (ECF Nos. 342-346), as well as Hovind's motion for reconsideration (ECF Nos. 349 & 350) and two additional motions to dismiss filed by Hovind in May and July of 2010, respectively (ECF Nos. 351 & 352; 359 & 360).

         Hovind filed his first § 2255 motion on November 24, 2010, and, pursuant to court order, his amended motion on December 9, 2010 (ECF Nos. 361, 364). Shortly thereafter he moved for release on bond, asserting he was entitled to release because he was likely to prevail on the issues he raised in his § 2255 motion (ECF Case Nos.: 3:06cr83/MCR/EMT; 3:19cv4327/MCR/EMT No. 368). After reviewing the response from the Government and Hovind's reply, the undersigned recommended that the motion for release be denied, finding that Hovind was unlikely to prevail on his § 2255 motion because the motion appeared to be untimely (ECF Nos. 371-373). The district court adopted this recommendation over Defendant's objection (ECF Nos. 379, 380, 383, & 384).

         The Government filed a consolidated motion to dismiss Hovind's § 2255 motion as untimely, which the district court granted, adopting the recommendation of the undersigned (ECF Nos. 385, 397, 401).

         Since then, Hovind has vigorously pursued collateral relief in this case, although most of his filings have no bearing on the court's consideration of his latest filing. Of some note, in 2011 Hovind filed a “motion to vacate” in which he unsuccessfully attacked the court's jurisdiction (ECF Nos. 399, 402, 416). Then, in 2013, Hovind filed what he styled as an “Amended Motion to Vacate” although no other § 2255 motion was pending (ECF No. 454). The court denied the motion as an unauthorized second or successive filing (ECF Nos. 456, 461). For the same reason, this court does not have jurisdiction to entertain Hovind's most recent motion.

         As this court is well aware, before a second or successive application for § 2255 relief is filed in the district court, the litigant must typically move in the Case Nos.: 3:06cr83/MCR/EMT; 3:19cv4327/MCR/EMT appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3) and § 2255(h); Felker v. Turpin, 518 U.S. 651 (1996); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005); Carter v. United States, 405 Fed.Appx. 409 (11th Cir. 2010). Hovind's successive motion falls within the larger subset of cases for which such authorization is required, as he is challenging the same judgment he challenged in his initial motion. Hovind has not obtained authorization from the Eleventh Circuit Court of Appeals to file a successive motion; therefore, the instant motion to vacate must be dismissed.

         CERTIFICATE OF APPEALABILITY

         Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant, ” and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules.

         After review of the record, the court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also ...


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