Tackett v. United States

          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 ...