The opinion of the court was delivered by: Wood, U.S.D.J.
Pursuant to 28 U.S.C. § 2255, Petitioner Kenneth Maxwell*fn1
("Maxwell") moves to vacate, set aside, or correct the
judgment entered by the undersigned on April 8, 1997. *fn2
For the reasons set forth below, the Court DENIES Maxwell's
In 1991, Maxwell burglarized several American Express offices and stole travelers checks, blank credit cards, and machines with which to print credit cards. On October 28, 1992, Maxwell pleaded guilty to six counts of credit card fraud, one count of attempted credit card fraud, one count of interstate transportation of stolen credit cards, and four counts of possession of false document-making implements, in United States v. Maxwell, No. 92 Cr. 60 (S.D.N.Y. 1992) ("Maxwell I"). The Honorable Thomas P. Griesa sentenced Maxwell to a term of 18 months of imprisonment followed by two years of supervised release.
While the charges in Maxwell I were pending, Maxwell impersonated an Assistant United States Attorney in an elaborate attempt to escape from federal custody at the Metropolitan Correctional Center. On July 1, 1993, Maxwell pleaded guilty to one count of attempted escape and two counts of unlawful impersonation of a federal officer, in United States v. Maxwell, No. 92 Cr. 1147 (S.D.N.Y. 1993) ("Maxwell II"). United States v. Maxwell, 92 CR 1147, 1994 WL 68174 at *1 (S.D.N.Y. Feb. 28 1994); United States v. Maxwell, 92 CR 1147, 1994 WL 115981 at *1 (S.D.N.Y. March 30, 1994). The Honorable Morris E. Lasker sentenced Maxwell to a term of 40 months of imprisonment followed by three years of supervised release.
Maxwell appealed from the July 1, 1993 judgment in Maxwell II and subsequently entered into a September 21, 1994 stipulation with the Government to withdraw his appeal pending further proceedings in the district court pursuant to Federal Rule of Civil Procedure 11.
In separate proceedings, Maxwell pleaded guilty on September 23, 1994 to one count of bank fraud in the Northern District of Illinois and was sentenced to a term of 33 months of imprisonment and five years of supervised release, in United States v. Mueller, No. 94 Cr. 594 (N.D. Ill. 1994) ("Maxwell III"). This sentence was to run concurrently with the sentence imposed in a prior case in the Northern District of Illinois, United States v. Mueller, No. 91 Cr. 251 (N.D. Ill. 1991).
The Federal Bureau of Prisons (the "B.O.P.") aggregated the sentences imposed in Maxwell II and Maxwell III and calculated a term of imprisonment of 41 months and two days that commenced on April 15, 1993. With credit for good conduct, the B.O.P calculated Maxwell's release date as April 8, 1996. Maxwell subsequently obtained habeas relief from the Middle District of Pennsylvania, crediting him with 171 days spent in Illinois state custody from January 3, 1991 to June 22, 1991, which had not previously been credited towards the service of an Illinois state sentence or the federal sentence imposed in United States v. Mueller, 91 Cr. 251 (N.D. Ill. 1991). Maxwell v. Holland, No. 95 Civ. 1910 (M.D. Pa. 1996). On February 20, 1996, after receiving the order from Maxwell v. Holland crediting Maxwell with 171 days of time served, the B.O.P. determined that Maxwell had fully served the terms of Maxwell II and Maxwell III as of October 20, 1995 and therefore should be released from federal custody. Pursuant to a detainer lodged by New Jersey corrections officials, Maxwell was then transferred to New Jersey custody to serve the remainder of his state sentence.
On April 8, 1997, the undersigned resentenced Maxwell on the attempted escape and unlawful impersonation convictions in Maxwell II to a term of 41 months of imprisonment and a three-year term of supervised release. Maxwell stated that he was requesting a 41 month sentence to run consecutively to the unrelated 60-month New Jersey State sentence, on which he was then incarcerated, so that he could receive any possible benefits associated with release from federal rather than state custody. In fact, because the time Maxwell spent in federal custody from October 20, 1995 until February 20, 1996 was not credited towards the service of any other federal sentence, one month was creditable to the additional one month of imprisonment imposed in the amended judgment in Maxwell II on April 8, 1997. Thus, upon resentencing on April 8, 1997, Maxwell's sentence both commenced and concluded, when his presentence credit was taken into account.
Upon the completion of his state sentence, the State of New Jersey released Maxwell from its custody and into federal supervision, on October 30, 1999. Maxwell promptly reported to the federal probation office. Maxwell states that he asked about the remaining month on his Maxwell II sentence and was told by a probation officer that she would look into it. Maxwell then signed an "Acknowledgement of Conditions" regarding the terms of his supervised release and began his terms of supervised release on both Maxwell I and Maxwell II.
On March 3, 2000, Maxwell was arrested and charged by the State of New York with forgery, possession of a forged instrument, grand larceny, and criminal possession of stolen property. Maxwell was subsequently indicted on federal wire fraud charges for a scheme to defraud friends and family members of federal detainees by deceiving them into sending him money, supposedly for the detainee's bail. On December 18, 2000, Maxwell pleaded guilty to multiple counts of wire fraud, in United States v. Maxwell, No. 00 Cr. 483 ("Maxwell IV"). The Honorable Lewis A. Kaplan sentenced Maxwell to a term of 135 months of imprisonment, followed by a three-year term of supervised release. See United States v. Livingston, 28 Fed. Appx. 40 (2d Cir. 2001).
Maxwell's conviction on the wire fraud charges violated the terms of his supervised release from the convictions in Maxwell I and Maxwell II. On April 25, 2008, Maxwell pleaded guilty to the two violations of supervised release (one for Maxwell I and one for Maxwell II) and was sentenced by the undersigned to two 24-month terms of imprisonment to run consecutively with each other and consecutively with the 135-month sentence in Maxwell IV, followed by a one-year term of supervised release. Maxwell appealed from the judgment of this Court, arguing that (1) the district court lacked jurisdiction to hear allegations of supervised release violations in Maxwell I and II, and (2) the Government's pursuit of the supervised release violation charges violated the plea agreement in Maxwell II, thereby depriving Maxwell of due process. The Second Circuit affirmed this Court's judgment on March 31, 2009. United States v. Maxwell, 318 Fed. Appx. 23, 27 (2d Cir. 2009); cert. denied, 130 S.Ct. 222 (2009). The Second Circuit found that "Maxwell's terms of federal supervised release in both Maxwell I and Maxwell II commenced upon his release from state custody in October 1999" and thus rejected Maxwell's jurisdictional challenge. Maxwell, 318 Fed. Appx. at 26. The Second Circuit also rejected Maxwell's challenge to his plea agreement as having been waived. Id. at 27.
On March 3, 2010, Maxwell filed a writ of habeas corpus with this Court challenging the constitutionality of his sentence, pursuant to 28 U.S.C. § 2255. Under the name David Livingston, Maxwell also filed a petition for a writ of habeas corpus in the Eastern District of Kentucky, challenging the calculation of his sentence, pursuant ...