Opinion
CIVIL NO. 07-729-GPM, CRIMINAL NO. 04-30071-GPM.
July 22, 2008
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. There is also a motion for declaratory judgment, to which the Government has not responded. Petitioner is proceeding pro se. For the reasons set forth below, the motion for relief under § 2255 is denied.
Petitioner entered an open plea of guilty to conspiring to distribute marijuana. He was sentenced to 120 months incarceration, eight years supervised release, a special assessment of $625, and a fine of $100. Petitioner appealed his sentence solely on the ground that his criminal history was not proven beyond a reasonable doubt, but this argument was rejected. United States v. Andrade-Moreno, 230 Fed. Appx. 622 (7th Cir. July 26, 2007). He then filed this motion pursuant to § 2255.
In this motion, Petitioner contends only that the indictment was defective in that it failed to set forth a proper basis for federal subject-matter jurisdiction. This contention is based on the fact that the indictment contains no specific section entitled "jurisdictional clause" (or words to that effect).
Such a claim is without foundation. The face of the indictment clearly states the basis for federal jurisdiction as "Title 18 United States Code, Sections 1957; 2" and "Title 21 United States Code Sections 841(a)(1); 846." This statutory reference is more than sufficient to specify the basis for federal jurisdiction.
Consequently, Petitioner's argument does not entitle him to relief under Section 2255 of Title 28. Accordingly, the Motion to Vacate, Set Aside or Correct Sentence is DENIED, and this action is DISMISSED with prejudice. Petitioner's motion for declaratory judgment is denied as moot.