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Tucker v. United States

United States District Court, E.D. Wisconsin

October 19, 2016

MICHAEL A. TUCKER, Petitioner-defendant,
v.
UNITED STATES OF AMERICA, Respondent-plaintiff. Criminal No. 09-CR-43

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         Pro se petitioner Michael Tucker filed a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence after revocation of supervised release. Judge Randa ordered the government to file a response, and defendant then filed a traverse and request for an evidentiary hearing. Due to the unavailability of Judge Randa, the matter was reassigned to me. I now deny the motion.

         I. BACKGROUND

         In the underlying criminal case, petitioner pleaded guilty to distribution of five grams or more of cocaine base, and on March 16, 2010, Judge Randa sentenced him to 60 months in prison followed by 4 years of supervised release. (Case No. 09-CR-43, R. 20.) Petitioner completed the prison term and commenced supervision on August 30, 2012. In April 2013, petitioner was arrested by state authorities and charged with possession of THC - 2d offense and possession with intent to deliver non-narcotic drugs. (R. 49 at 1-2.) The charges arose out of an April 16, 2013 traffic stop, during which police allegedly recovered marijuana from petitioner's person and vehicle, and the execution of a search warrant at petitioner's residence later that day, during which officers allegedly seized from petitioner's bedroom a variety of pills, including methylenedioxypyrovalerone (“MDPV”) and benzothiophenylcyclohexylpiperidine (“BTCP”) tablets. (Id. at 2.) On April 26, 2013, Judge Randa issued a warrant to act as a detainer. (R. 40.) Petitioner later pleaded guilty to the THC charge in state court, with the other count dismissed and read in, and on October 2, 2014, the state court sentenced him to one year confinement followed by one year of extended supervision. (R. 52 at 2.)

         On October 31, 2014, petitioner appeared with counsel for a revocation hearing before Judge Randa. (R. 63 at 1.) The parties jointly recommended that petitioner be remanded into federal custody and that the final revocation hearing be adjourned in anticipation of a joint recommendation as to the sentence. (R. 63 at 2-3.) Judge Randa remanded petitioner into custody and continued the hearing. (R. 63 at 5.)

         On December 18, 2014, the parties appeared for the continued revocation hearing. (R. 64 at 1.) The revocation hearing report listed three alleged violations: (1) possession of marijuana, second offense (a felony under state law), a Grade B violation; (2) possession of non-narcotic pills with intent to distribute, a Grade A violation; and (3) failure to make payments towards court-ordered financial obligations, a Grade C violation. (R. 49 at 7.) Judge Randa indicated that he had reviewed the reports and asked the government if it intended to offer any evidence; the prosecutor said no. (R. 64 at 2.) Defense counsel stated that the defense also did not intend to offer evidence, but he indicated that:

the defense does contest, I guess, what is listed as the grade A violation in here; the possession of, I guess, a Schedule I controlled substance.
And I apologize; I was under the impression that the parties might jointly recommend that; but what happened is, there was a search warrant conducted at a house where my client resided on April 16, 2013.
Both Mr. Tucker and his brother were subsequently charged as a --partially as a result of that search; but for Mr. Tucker, he was also charged with possession of marijuana that's listed as one of -- the grade B violation. He does not contest that. But the pills apparently were found in a dresser drawer in a bedroom.
The police reports indicate that there was mostly men's clothing there --someone's clothing, and the police report indicates that my client's mother indicated that was Mr. Tucker's room.
My client's mother, who is here today, indicates that she had told the officers that he sleeps there on occasion. She would tell the Court, if the Court would inquire today, that she -- this was a four-bedroom house. She resides there; has five children, all of whom reside there on and off; and that back in April there were a number of different people who slept in this particular bedroom.
I would note that Mr. Tucker was in Racine County charged with two counts: The possession of marijuana, second offense, which he pled guilty to and was given one year of initial confinement, one year of extended supervision; the second count, which would be the grade A violation, revolved around the, I guess, the BTCP pills that were found, as well as another Schedule I. That was dismissed and read in; so he was not convicted of that.
I understand the burden here is only preponderance of the evidence. Our argument would be that simply finding these pills in a bedroom where he sometimes sleeps would not be enough to show by a preponderance of the evidence.
We're certainly not disputing, Your Honor, the facts alleged in the grade B violation.

(R. 64 at 2-4.) The government responded:

The Government believes that by a preponderance of evidence the grade A violation is supported as set forth in the memo ...

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