United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION
VIRGINIA EMERSON HOPKINS, SENIOR UNITED STATES DISTRICT JUDGE
Petitioner
Larry Dean Tackett has challenged his conviction and sentence
by his Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
(doc. 1, filed Feb. 28, 2018), [1] as amended by his Amended Motion
(doc. 2, filed Mar. 28, 2018).[2][3] The Government has responded to the
Petition. (See doc. 5). Being familiar with the
issues raised, the Court determines that an evidentiary
hearing is not required. Accordingly, the matter is ripe for
determination. For the reasons set out below, the Petition is
due to be DENIED.
I.
Background
On June
29, 2016, the Grand Jury returned an Indictment (Criminal No.
1:16-CR-00187-VEH-JEO-1, doc. 1) charging Petitioner with:
(1) using a cellular telephone to “attempt to knowingly
persuade, induce, and entice an individual, known to the
defendant as a 14-year old female, who had not obtained 18
years of age, to engage in sexual activity for which the
defendant can be charged with a criminal offense, to wit:
Rape in the Second Degree (Ala. Code § 13A-6-62); and
Sexual Abuse in the Second Degree (Ala. Code §
13A-6-67), in violation of Title 18, United States Code,
Section 2422(b)” (Count One); and (2)
“attempt[ing] to use, persuade, induce, entice, and
coerce a person known to the defendant as a 14-year old
female, who had not obtained 18 years of age, to engage in
sexually explicit conduct for the purpose of producing a
visual depiction of such conduct, knowing and having reason
to know that such visual depiction would be transported using
any means and facility of interstate and foreign commerce,
including by computer, in violation of Title 18, United
States Code, Sections 2251(a) and (e)” (Count Two).
(Criminal Case doc. 1 at 1-2).
Petitioner
entered a written Plea Agreement (Criminal Case doc. 29,
filed Feb. 7, 2017) and pled guilty to Count Two of the
Indictment. (See Id. at 1, 19-20). The Court
accepted the guilty plea, and, on May 10, 2017, a Judgment of
Conviction (Criminal Case doc. 38) was entered sentencing
Petitioner to the statutory mandatory minimum term of one
hundred and eighty (180) months imprisonment. (Id.
at 1-2). In the Judgment of Conviction, Petitioner was
expressly given “credit for all time in custody from
and including May 4, 2016.” (Id. at 2). Count
One of the Indictment was dismissed pursuant to the Plea
Agreement. (See Id. at 1). Petitioner did not file a
direct appeal. (See Criminal Case Docket Sheet).
On
February 28, 2018, Petitioner filed a Motion Under 28 U.S.C.
§ 2255 To Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody. (Doc. 1). Petitioner amended that
motion on March 28, 2018. (Doc. 2). He raises four issues.
The first is that “[t]he trial court was without
jurisdiction to charge the offenses in the District of
Alabama.” (Doc. 1 at 4; doc. 2 at 3-5). The second is
that he “received ineffective assistance of
counsel.” (Doc. 1 at 6; doc. 2 at 5). The third is that
“[t]he sentence imposed unduely [sic] exaggerates the
criminality of the alleged offense” (doc. 1 at 7) and
that “[t]he sentence imposed is unduely [sic]
exaggerated.” (Doc. 2 at 5-6). The fourth is that he is
entitled to but has not received approximately 90 days of
jail credit. (Doc. 2 at 1, 6).
II.
Standard of Review
A.
General Standard
Collateral
attack is not a substitute for direct appeal. Accordingly,
Section 2255 provides federal prisoners with an avenue for
relief under limited circumstances:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.
28 U.S.C. § 2255(a). If a court finds a claim under
Section 2255 to be valid, the court “shall vacate and
set the judgment aside and shall discharge the prisoner or
resentence him or grant a new trial or correct the sentence
as may appear appropriate.” Id. §
2255(b). To obtain this relief on collateral review, however,
a petitioner “must clear a significantly higher hurdle
than would exist on direct appeal.” See United
States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584,
1593, 71 L.Ed.2d 816 (1982) (footnote omitted) (rejecting the
plain error standard as not sufficiently deferential to a
final judgment).
B.
Hearing
Under
Section 2255, unless “the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, ” the court shall “grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” 28 U.S.C. § 2255(b). The Eleventh
Circuit Court of Appeals has explained that “[a] habeas
corpus petitioner is entitled to an evidentiary hearing on
his claim ‘if he alleges facts which, if proven, would
entitle him to relief.'” Smith v.
Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999)
(quoting Futch v. Dugger, 874 F.2d 1483, 1485 (11th
Cir. 1989)). However, “if the record refutes the
applicant's factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an
evidentiary hearing.” Schriro v. Landrigan,
550 U.S. 465, 474, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836
(2007); see also Aron v. United States, 291 F.3d
708, 715 (11th Cir. 2002) (explaining that no evidentiary
hearing is needed when a petitioner's claims are
“affirmatively contradicted by the record” or
“patently frivolous” (citing Holmes v. United
States, 876 F.2d 1545, 1553 (11th Cir. 1989))).
III.
Discussion
A.
Ground #1: Jurisdictional Challenge
1.
Petitioner's Contention
Petitioner
challenges his conviction and sentence on the basis that his
criminal conduct did not occur in the Northern District of
Alabama. (See doc. 1 at 4 (“[Petitioner]
committed nothing unlawful in the State of Alabama[] . . . .
If [Petitioner] committed any crime whatsoever, it was
committed within the State of Kentucky, not Alabama,
leaving Alabama without jurisdiction to charge or [i]ndict
[Petitioner].”)) (see also Id. at 6 (“I
did not . . . violate the law by any means in the State of
Alabama, but [I] was coerced to drive to the State of
Alkabama [sic] by the [p]olice.”); doc. 2 at 3
(“Review of the two count Indictment [reveals that it]
is clearly defective, which in part alleges that the overt
acts of [Petitioner] were committed within the jurisdictions
of Kentucky, Tennessee, the Northern
District of Alabama, and elsewhere.”)).
2.
Factual Basis for Guilty Plea
In his
written Plea Agreement, Petitioner agreed that the following
facts are substantially correct:
The defendant, LARRY DEAN TACKETT, is a native and citizen of
the United States, born in or about January 1961. On May 3,
2016, the Ashland Police Department received a report that an
adult male had taken over a 12-year-old female's Facebook
account (the “Account”). There is no evidence
that TACKETT previously knew the 12-year-old female. The
adult male had been contacting minor females in the Ashland,
Alabama area. On April 4, 2016, the User of the Account,
TACKETT, also updated the profile picture to a picture of an
adult male wearing glasses and a baseball hat.
An Ashland Police Department Investigator subsequently
created a fictitious Facebook account under the name of TIARA
MARTIN, a 14-year-old female from Ashland, Alabama. MARTIN
initiated the friend request to TACKETT. TACKETT initiated a
chat conversation with MARTIN via Facebook Messenger at
approximately 1:32pm. The Investigator, posing as MARTIN,
began communicating with TACKETT. At ...