United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
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, '” a “Copy of court clerk[']s
‘No Sworn Complaint Found in Court Record, '”
and a “Proof of Service” (see Id. at 8).
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.
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
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).
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).
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, &
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).
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.
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.
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.
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 ...