United States District Court, D. New Jersey
JOSEPH E. IRENAS, District Judge.
Presently before the Court are the two motions of Richard Kaplan ("Petitioner") to vacate, set aside, or correct his September 7, 2007, conviction, brought pursuant to 28 U.S.C. § 2255. (13-5295 ECF No. 1; 14-1007 ECF No. 1). Respondent, United States of America ("Respondent"), filed a consolidated Answer (13-5295 ECF No. 16; 14-1007 ECF No. 9) and Petitioner filed a consolidated Reply. (13-5295 ECF No. 17; 14-1007 ECF No. 10). For the following reasons, the Court denies these motions.
On April 20, 2007, Petitioner pled guilty pursuant to a written plea agreement to a one count-information charging him with one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 666. (Plea Hearing Transcript, Exhibit 5 to 13-5295 ECF No. 16). The one count information describes the charge as follows:
[Petitioner] was employed as a Rehabilitation Construction Inspector and Assistant Zoning Officer for the City of New Brunswick's Department of Community Planning and Economic Development.... The Department administered housing rehabilitation assistance programs designed to remedy substandard conditions in homes owned by qualifying low or moderate income owners within the City of New Brunswick. As a rehabilitation Construction Inspector and Assistant Zoning Officer, [Petitioner] was responsible for, among other things, preparing scopes of work to address the substandard conditions and performing follow-up to inspections to ensure compliance with the scopes of pertinent federal, state, and local regulations.
From in or about January, 2004 to in or about September, 2006, [Petitioner] accepted from contractors corrupt cash payments and other benefits totaling more than approximately $30, 000. [Petitioner] accepted these corrupt cash payments and other benefits in exchange for exercising, and agreeing to exercise, official action and influence in favor of the contractors.
... [Petitioner] being an agent of the Department, did knowingly, willfully, and corruptly solicit and demand for his benefit, and accept and agree to accept items of value... intending to be influenced and rewarded in connection with a business, transactions, and a series of transactions of the Department involving things of $5, 000 and more.
(Information, Exhibit 1 to 13-5295 ECF No. 16). As part of his plea to this charge, Petitioner waived his right to indictment. (Waiver of Indictment, Exhibit 2 to 13-5295 No. 16).
During his plea hearing, Petitioner's counsel informed the Court that he and Petitioner had extensively reviewed his plea agreement and the potential sentence for the charge, and that Petitioner understood the plea agreement. (Plea Hearing Transcript, Exhibit 5 to 13-5295 ECF No. 16, 2-3). Petitioner, while under oath, expressed his satisfaction with counsel's representation, and informed the court that he understood and voluntarily waived his right to indictment. (Id. at 8-9, 13-14). The Court then reviewed with Petitioner his right to a jury trial, to have an attorney at trial, to confront witnesses, and that if he chose to go to trial the Government would have to prove his guilt beyond a reasonable doubt. (Id. at 10-12). After the Court explained these, and Petitioner's other rights at trial, Petitioner stated that he understood. (Id. at 10-13). The Court also reiterated the basis of the charges brought against Petitioner, which Petitioner then admitted. (Id. at 14, 22-25). The Court then discussed with Petitioner his sentencing exposure at length, including the possibility and terms of supervised release, the civil consequences of a felony guilty plea, and the non-mandatory nature of the Sentencing Guidelines, all of which Petitioner stated that he understood. (Id. at 14-19). Petitioner also told the Court that he agreed to the plea and that he had not been coerced to enter into it. (Id. at 19-22). Following this colloquy, the Court accepted Petitioner's guilty plea, finding that it was knowing, voluntary, and factually supported. (Id. at 26-27).
The Court sentenced Petitioner on September 6, 2007. (Sentencing Transcript, Exhibit 56 to 13-5295 ECF No. 16). At sentencing, the Court found Petitioner's final offense level to be 19 with a recommended sentencing range of 30 to 37 months and a potential fine between $6, 000 and $60, 000. (Id. at 14). Following Petitioner's counsel's recommendation of a minimum sentence, and Petitioner's statement in which he expressed regret for his actions, the Government recommended a sentence including both jail time and a fine. (Id. at 20-23). The Court, after reviewing the § 3553(a) factors, sentenced Petitioner to 30 months' imprisonment, a $30, 000 fine, and a three year period of supervised release. (Id. at 26-27). Petitioner did not appeal following the Court's imposition of sentence.
While Petitioner has served his entire imprisonment term for this conviction in the time between conviction and his filing of his § 2255 petitions, he remains incarcerated due to a conviction for a second offense, attempted murder for hire in violation of 18 U.S.C, § 1958(a),  and therefore has yet to serve his term of supervised release. ( See United States v. Richard Kaplan, Criminal Action No. 08-581, ECF No. 38). Therefore this Court has jurisdiction to decide the instant Motions. See United States v. Baird, 312 F.App'x 449, 450 (3d Cir. 2008) ("We have made plain that a petitioner on supervised release is "in custody" for purposes of § 2255 [jurisdiction]"). Petitioner ...