2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-29-2009

Paul Podhorn Jr. v. J. Grondolsky

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3559

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Recommended Citation

"Paul Podhorn Jr. v. J. Grondolsky" (2009). 2009 Decisions. Paper 352.

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CLD-021 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3559

___________

PAUL E. PODHORN, JR.,

 Appellant

v.

WARDEN L. GRONDOLSKY; F.C.I. FORT DIX

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 09-cv-3588)

District Judge: Honorable Jerome B. Simandle

____________________________________

Submitted for Possible Summary Action Pursuant to 

 Third Circuit LAR 27.4 and I.O.P. 10.6(a)

October 22, 2009

Before: BARRY, FISHER and COWEN, Circuit Judges

(Opinion filed: October 29, 2009 )

___________

OPINION

___________

PER CURIAM

Appellant Paul Podhorn, a pro se prisoner, appeals from the District Court’s denial

of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. In his habeas petition,
 We note that Podhorn has filed several other cases against Appellees in the District 1

Court, many of which have already been closed. See, e.g. Podhorn v. Grondolsky, Civ.

No. 09-2531. In the notice of appeal that Podhorn filed in this case, he discusses claims

which he did not raise in his § 2241 petition and which the District Court did not review

in its August 4, 2009 memorandum opinion. We will only review those claims reviewed

by the District Court in the instant case. To the extent that Podhorn seeks review of

additional claims litigated in other District Court cases, he must file proper separate

notices of appeal.

 Podhorn has been serving his federal sentence at F.C.I. Fort Dix in New Jersey. 2

2

Podhorn challenged the Federal Bureau of Prisons’ (“BOP”) calculation of his federal

sentence. Podhorn also alleged that the BOP improperly denied him placement in a 1

Community Corrections Center (“CCC”). For the reasons set forth below, we will

summarily affirm. See I.O.P. 10.6. 

I.

On April 21, 2006, Podhorn, was sentenced in the United States District Court for

the Southern District of Illinois to eighty-seven months of imprisonment for various

firearms violations, including selling firearms without maintaining proper records, in

violation of 18 U.S.C. § 922(m). On or about May 28, 2009, after the Seventh Circuit 2

Court of Appeals determined that Podhorn erroneously received a sentence enhancement

under U.S.S.G. § 2K2.1(b)(4), the District Court amended Podhorn’s term of

imprisonment from eighty-seven months to seventy months.

Following his re-sentencing, the BOP re-calculated Podhorn’s sentence under

applicable guidelines, determining that, based on a seventy-month sentence that began on

April 21, 2006, and excluding prior custody credit and Good Time Credits (“GCT”),
3

Podhorn would be eligible for release on February 20, 2012. 

Podhorn was initially afforded a prior custody credit of 637 days. However, after

contacting the Sheriff of Jersey County, Illinois, to confirm Podhorn’s prior custody credit

relating to his state incarceration, the BOP was informed that prior custody credit

previously afforded Podhorn from January 10, 2003, through February 10, 2003, should

not have been included. Podhorn was released from state custody on a recognizance bond

on January 10, 2003, and thus, he was only entitled to a prior custody credit of 606 days. 

Accordingly, Podhorn’s release date, not including GCT, would be June 24, 2010.

On a seventy-month sentence, however, Podhorn is eligible to receive a maximum

of 274 days of GCT. To date, he has lost a total of ninety-seven days of GCT through the

BOP’s disciplinary process. Thus, his current earned and projected GCT is 190 days. 

Subtracting 190 days of GCT, earned and projected, from his full term date of June 24,

2010, the BOP projects that Podhorn will be released on December 16, 2009.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C.

§ 2253(a). A certificate of appealability is not required to appeal from the denial of

Podhorn’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009). 

We exercise plenary review over the District Court's legal conclusions, and review its

factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.

2007).
4

III.

Podhorn challenges the BOP’s calculation of his release date as December 16,

2009. He believes that he should have been released on August 5, 2009. We agree with

the District Court that Podhorn has not demonstrated that the BOP’s calculations are

incorrect.

As mentioned earlier, the full term expiration of Podhorn’s seventy-month

sentence, not including prior custody credit or GCT, is February 20, 2012. Podhorn was

afforded 606 days prior custody credit, making the actual full term expiration date of his

sentence June 24, 2010. Provided that he receives the remaining possible 190 days of

GCT, his projected release date is December 16, 2009. Thus, the BOP has properly

calculated Podhorn’s likely date of release as December 16, 2009. Although Podhorn

claims otherwise, we agree with the District Court that the BOP’s calculations are correct

and that Podhorn has not set forth credible evidence suggesting otherwise.

We also agree with the District Court that the BOP has not wrongfully failed to

transfer Podhorn to a CCC. As an initial matter, it has been established that prisoners

have no constitutional right to be assigned to a particular institution, facility or

rehabilitative program. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983). Simply

because the BOP has discretion to transfer or assign an inmate to a CCC does not mean

that it is required to do so, provided that it considers the appropriate factors. See Woodall

v. Federal Bureau of Prisons, 432 F.3d 235, 249 (3d Cir. 2005).
 As of the date that the District Court issued its decision, Podhorn’s request to be 3

transferred to the Southern District of Florida remained pending. The current status of

Podgorn’s transfer request is unclear.

5

Prior to Podhorn’s May 28, 2009 re-sentencing, his projected release date was

February 2, 2011. According to the BOP, review of an inmate’s eligibility for CCC

placement typically occurs seventeen to nineteen months prior to the inmate’s release

date. At the time of Podhorn’s re-sentencing, his release date was more than nineteen

months away. Thus, he had yet to be evaluated for CCC placement. While it is true that

Podhorn’s re-sentencing resulted in him having less than twelve months remaining on his

sentence, and thus enabled him to be considered for CCC placement at that time, he had

already filed an application with the BOP requesting to be transferred to the Eastern

District of Missouri (where his wife was living) to serve his supervised release. On or

about June 17, 2009, the United States Probation Office (“U.S.P.O.”) for the Eastern

District of Missouri denied Podhorn’s transfer request on the grounds that Podhorn’s wife

told the U.S.P.O. that she would be relocating to the Southern District of Florida. 

That same month, Podhorn signed another transfer request seeking to be

transferred to the Southern District of Florida. The request, which Podhorn signed,

specifically stated that he would be reviewed for CCC placement upon approval by the

U.S.P.O. in the Southern District of Florida. 

3

We agree with the District Court that Podhorn’s claim that Appellees have

improperly denied him placement in a CCC, is unfounded. Podhorn’s requests to be
transferred to other jurisdictions are at the root of the delay in his evaluation for CCC

placement. Accordingly, the District Court did not err in denying this claim.

As Podhorn’s appeal presents no substantial question, we will summarily affirm. 

See Third Cir. LAR 27.4; I.O.P. 10.6. Podhorn’s motion for appointment of counsel is

denied.

6