Maxwell v. United States of America

Filing 3

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/22/2016. (JLC)

FILED
2016 Mar-22 AM 11:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIRK V. MAXWELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Defendant.

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) Case No.: 2:16-cv-08015-VEH
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(2:12-cr-00210-VEH-JHE)
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MEMORANDUM OPINION
Petitioner, Kirk V. Maxwell, has filed a motion to vacate, set aside or correct
his sentence, pursuant to 28 U.S.C. 2255. (Doc. 1).1 An evidentiary hearing is not
needed, nor is a response needed by the Government.2 Having fully considered all

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Although the Motion was filed as docket entry 52 in the associated criminal
case, 2:12-cr-00210-VEH-JHE, and was entitled “In Re: Case No. 2:12-CR00210(VEH)” and purports to invoke FED.R.CIV.P. 44 and the “Judicature Act of
1873", it seeks Petitioner’s release from custody. (Doc. 1). Accordingly, the
undersigned directed that it be docketed as a Motion To Vacate Under 28 USC §
2255. (Docket entry dated 3/16/2016 in 2:12-cr-00210-VEH-JHE). When it was
redocketed as instructed in that criminal case, it was assigned docket entry 54.
Thus, docket entry 52 in the criminal case is hereby TERMED as MOOT in light
of docket entry 54 in that case.
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Although the court entered an Order for the Government to show cause why
the Motion should not be granted (doc. 2), no such response is needed in light of the

relevant pleadings in this case, and in the related criminal case (United States v.
Kirk V. Maxwell, 2:12-cr-00210-VEH-JHE), the undersigned finds that Petitioner’s
2255 motion is due to be dismissed as time-barred pursuant to 28 U.S.C. 2255(f)(1).
I. PROCEDURAL HISTORY3
On April 6, 2012, a grand jury sitting in the Northern District of Alabama
returned a two-count indictment against Petitioner charging him with two counts of
attempted enticement of a child who had not obtained the age of 18 years to engage
in sexual activity for which the defendant can be charged with a criminal offense in
violation of Title 18, United States Code, Section 2422(b). (Doc. 4) On July 20,
2012, Petitioner plead guilty to Count One only. (Court Entry 7/20/2012). Petitioner
filed with the court a signed Guilty Plea Advice of Rights Certification (doc. 34 and
a signed Plea Agreement (doc. 35). Pursuant to the Plea Agreement, the
Government agreed to move to dismiss Count Two at sentencing. (Id.).
On November 1, 2012, the undersigned sentenced Petitioner to a custodial
term of 120 months. Following the imposition of sentence, Petitioner did not pursue
a direct appeal.
wholly procedural determination of this case based upon the record proceedings in
this court. Accordingly, such Order To Show Cause is hereby VACATED.
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All references to the record in this portion of this Opinion are to the related
criminal case, 2:12-cr-00210-VEH-JHE, unless otherwise indicated.
2

On February 23, 2016, Petitioner filed the motion now pending before the
court. Petitioner remains in custody at this time. (Doc. 52).
II. THE 2255 PETITION4
In his Petition, Petitioner asserts various “facts” relating to his status as “a
private citizen of the United States of America by natural birth” (e.g. doc. 1 at 1),
“depriv[ation of] substantive due process rights,” (id. at 2), and fraud by the United
States by “not providing full disclosure of the State-created ‘Corporate Sole’ in the
name of KIRK V. MAXWELL and their deceptive trust practices in creating a
‘Constructive Trust’ by which to trick, entrap, and deprive private citizen, KirkVincent Maxwell, the natural person, from his unalienable Right to life, liberty and
property, including guaranteed entitlements, immunities and protections conferred
by the Constitution of the united States of America as a direct result of his natural
birth” (id.)(emphasis, capitalization, grammar, and spelling in original). Petitioner
alleges that, as a result, he is “wrongfully and unjustly imprisoned in the FEDERAL
BUREAU OF PRISONS” (id. at 4)(capitalization in original). For relief, he asks
this court to order his release and expunge his records. (Id. at 5).
A. STATUTE OF LIMITATIONS APPLICABLE TO PROCEEDINGS UNDER § 2255

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All references to the record in this portion of this Opinion are to the filings in
this §2255 proceeding, unless otherwise indicated.
3

The Anti–Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
was enacted on April 24, 1996, and, pertinent to this case, added a new subdivision
to 28 U.S.C. 2255 providing for a one-year period of limitations within which
federal prisoners must file their motions to vacate pursuant to 28 U.S.C. 2255. Akins
v. United States, 204 F.3d 1086, 1089 (11th Cir.), cert. denied, 531 U.S. 971, 121
S.Ct. 410, 148 L.Ed.2d 316 (2000).
A 1–year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. 2255(f).
B. ANALYSIS
Petitioner makes no argument, and presents no facts, in favor of the court’s
application of subsections (2), (3), and (4) of 2255(f). Thus, the timeliness of the

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pending motion is calculated under 2255(f)(1) based upon the date on which a
petitioner's judgment of conviction became final. In this case, the undersigned
entered its Judgment of Conviction on November 1, 2012. (Doc. 43, case no. 2:12cr-00210-VEH-JHE). Petitioner did not appeal, and therefore his conviction became
final on November 15, 2012. FED. R. APP. P. 4(b). See Akins v. United States, 204
F.3d 1086. Because the pending petition fails to raise any issue that is not subject to
this one-year limitation period, the petition is time-barred.
III. DENIAL OF CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing 2255 Proceedings, the court
finds that a certificate of appealability in this case is not well-founded, and any
application for one is due to be denied. 28 U.S.C. foll. 2255, Rule 11(a) (“The
district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.”). The habeas corpus statute makes clear that an
applicant is entitled to appeal a district court's denial of his habeas corpus petition
only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C.
2253(c)(1). A certificate of appealability may issue only where “the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
2243(c)(2). Where, as here, a habeas petition is being denied in its entirety on
procedural grounds without reaching the merits of an underlying constitutional
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claim, “a COA should issue [only] when the prisoner shows ... that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484, 120 S .Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Given the applicability of the
one-year limitations period in this case, a reasonable jurist could not conclude that
this Court is in error for dismissing Petitioner’s motion to vacate, nor could a
reasonable jurist conclude that Petitioner should be allowed to proceed further with
respect to his claims. Id., 529 U.S. at 484, 120 S.Ct. at 1604 (“Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further.”).
Accordingly, Petitioner is not entitled to a certificate of appealability.
IV. CONCLUSION
The instant Motion is dismissed as time-barred pursuant to 28 U.S.C.
2255(f)(1). Petitioner is not entitled to a certificate of appealability and, therefore,
he is not entitled to appeal in forma pauperis.

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DONE and ORDERED this the 22nd day of March, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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