The opinion of the court was delivered by: Hon. Avern Cohn
MEMORANDUM AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. §2255
This is a habeas case under 22 U.S.C. § 2255. Petitioner Tommie Lee Hodges (Petitioner) plead guilty under a Rule 11 agreement to conspiracy to possess with intent to distribute, and to distribute marijuana, in violation of 21 U.S.C. § 846 and conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956(a)(1)(A)(1); 1956(a)(1)(B)(I); 1956(a)(1)(B)(ii); 1956(h). Petitioner was sentenced to 150 months of imprisonment.
Before the Court is Petitioner's pro se motion to vacate his sentence under § 2255, claiming that his constitutional rights have been violated. He specifically claims that (1) he was not in federal custody at the time of his conviction and sentencing and therefore the Court did not have jurisdiction over him, and (2) the laws under which he pled guilty are unconstitutional. For the reasons that follow, the motion is DENIED.
II. Factual Background and Procedural History
The events leading to Petitioner's conviction follow: On October 15, 2002, officers of the Pima County (Arizona) Sheriff's Office seized $384,954.00 cash from associates of Petitioner. During the course of the investigation, DEA and IRS agents learned that this money had been sent from Detroit, Michigan, to Arizona by Petitioner as payment for a load of marijuana.
On August 18, 2003, DEA agents learned a residence at 11066 Findlay, Detroit, Michigan, utilized by Petitioner, was distributing a large shipment of marijuana, and subsequently obtained a search warrant. On August 19, 2003, the search warrant was executed. Search of the residence revealed two handguns; $26,120.00 in cash sitting on the living room table and floor; $7,620.00 in cash in the possession of Leonard Shoulders who was occupying the residence at the time; and a notebook with drug ledger information on an end table indicating the sales of multi-pound quantities of marijuana and amounts owed from marijuana sales. Search of the residence's basement revealed packaging material, an electronic scale, a Nexus triple beam scale, ziplock bags containing marijuana, and three baggies containing marijuana. During the course of the investigation, agents learned that multiple hundred pound shipments of marijuana were distributed from the residence. Petitioner would arrange for these large shipments to be brought to Detroit from Arizona, using large trucks. The marijuana would be transported to unknown warehouse locations, and then transported by box van to the distribution locations, such as the 11066 Findlay residence.
On September 19, 2003, DEA agents, officers of the Detroit Police Department (DPD), and troopers of the Michigan State police Homicide Task Force executed a federal search warrant at 22636 Lakecrest, Saint Clair Shores, Michigan, a residence owned by Petitioner. Search of the residence revealed over $290,000.00 in cash and several handguns.
On January 23, 2004, DEA agents learned Petitioner had a shipment of marijuana in, and that it was being distributed from 8828 Cyril, Detroit, Michigan. Surveillance was then set up and agents observed an individual exit the residence and place a large garbage bag in the rear seat of a vehicle and drive away. A traffic stop was conducted by DPD officer, and the large garbage bag was found to contain marijuana. Later that day, agents and officers executed a search warrant at 8828 Cyril. In the residence, they found 112.2 kilograms of marijuana and numerous packaging and selling paraphernalia; including bags, boxes, and scales.
In terms of quantities of marijuana, according to records provided by the government, in the twelve-month period of 2001, Petitioner shipped a conservatively estimated 17,218.24 kilograms of marijuana to Detroit, Michigan. Between January 2002 and October 2002, Petitioner shipped 18,144 kilograms. Between October 2002 and March 2004, Petitioner shipped 10,795.68 kilograms. Overall, Petitioner shipped 46,357.92 kilograms of marijuana shipped to Detroit.
On January 13, 2005, a federal grand jury returned an eight-count Second Superseding indictment against the Petitioner. The eight-count indictment charged Petitioner with Count 1, Conspiracy to Possess with Intent to Distribute and to Distribute Over 1,000 Kilograms of Marijuana, in violation of 21 U.S.C. §§846 and 841(a)(1); Count 2, Conspiracy to Launder Monetary Instruments, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(I), 1956(a)(1)(B)(I); 1956(a)(1)(B)(ii), and 1956(h); Count 3, Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity, Aiding and Abetting, in violation of 18 U.S.C. §§ 1957 and 2; Count 4, Felon in Possession of a Firearm, in violation of 18 U.S.C § 922(g); Count 6, Interstate Travel in Aid of Racketeering Enterprises, in violation of 18 U.S.C. §1952(a)(2); Count 7, Forfeiture, pursuant to 21 U.S.C. § 853(a); and Count 8, Money Judgment, pursuant to 21 U.S.C. § 853 and 18 U.S.C. § 982.
On April 8, 2005, Petitioner signed a Rule 11 plea agreement in which he agreed to plead guilty to the first two counts of the indictment; count one being conspiracy to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846, and count two being conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(a)(1)(A)(1); 1956(a)(1)(B)(I); 1956(a)(1)(B)(ii); 1956(h). As part of the plea agreement, Petitioner waived his right to appeal his conviction or sentence, if the sentence imposed by the court did not exceed 293 months. On April 20, 2005, Petitioner plead guilty under the Rule 11 agreement. On October 3, 2007, Petitioner was sentenced to a term ...