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United States v. Tackett

United States District Court, E.D. Kentucky, Southern Division

March 13, 2019





         Defendant/Movant Scott Dewayne Tackett (a federal inmate) pled guilty to conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 and was sentenced to sixty-six (66) months in prison. [R. 122 (Judgment)]. Tackett did not file a direct appeal; instead, he filed this instant pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. [R. 173 (Motion)].

         Under Rule 4 of the Rules Governing Section 2255 Proceedings, the Court must conduct a prompt “preliminary review” of the motion. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Id.; see also 28 U.S.C. § 2255(b) (permitting dismissal of a § 2255 motion when “the files and records of the case conclusively show that the prisoner is entitled to no relief”). In this case, because Tackett's motion [R. 173] plainly lacks merit, it must be denied.


         On March 23, 2017, Tackett was indicted on two counts. Count I of the indictment charged that from June 2016 until July 20, 2016, Tackett conspired with others to distribute Schedule II controlled substances, namely oxycodone, hydrocodone, methadone, and morphine, in violation of 21 U.S.C. §§ 841(a)(1), 846. [R. 1 (Indictment)]. Count II charged that on or about July 20, 2016, Tackett possessed a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). [Id. at 2]. On August 14, 2017, pursuant to a written plea agreement [R. 67 (Plea Agreement)], Tackett pleaded guilty to Count I of the indictment and the Government moved to dismiss Count II at time of sentencing. [R. 66 (Minute Entry for Rearraignment and Plea)]. On February 12, 2018, Tackett was sentenced to a total term of sixty-six (66) months of imprisonment with six years of supervised release for Count I. [R. 118 (Minute Entry for Sentencing); R. 122 (Judgment)]. R. 176 (Transcript of Sentencing Hearing)].

         On February 11, 2019, Tackett filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. [R. 173].[1] Therein, he presents only one argument: that the Court incorrectly calculated the Guidelines since his federal sentence does not run concurrently with his related state court sentence. [Id. at 4]. At the time of sentencing, the Presentence Investigation Report (PSR) details pending charges alleged against Tackett in Floyd County Circuit Court.[2] Evidently, on July 21, 2016, Tackett was arrested on state charges related to the federal charges listed in his indictment [R. 1]. As such, when Tackett refers to a “related, but not yet imposed state sentence[, ]” the Court construes the pending charges listed on the PSR to be those same state charges that Tackett alludes to in his motion. [R. 173 at 4-5].


         Tackett brings his Motion to Vacate under 28 U.S.C. § 2255. Section 2255(a) provides that a federal prisoner may obtain post-conviction relief if his sentence violates the Constitution or federal law, the federal court lacked jurisdiction to impose such sentence, or the sentence exceeds the maximum authorized by law. 28 U.S.C. § 2255(a); Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (“In order to prevail upon a § 2255 motion, the movant must allege as a basis for relief: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'” (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001))). If alleging a constitutional error, the defendant must show the error “had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). Alternately, if alleging a non-constitutional error, the defendant must establish “a fundamental defect which inherently results in a complete miscarriage of justice . . . an error so egregious that it amounts to a violation of due process.” Watson, 165 F.3d at 488 (citing United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)).

         In making a § 2255 motion, a movant generally bears the burden of proving factual assertions by a preponderance of the evidence. McQueen v. United States, 58 Fed.Appx. 73, 76 (6th Cir. 2003) (per curiam) (“Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have the burden of sustaining their contentions by a preponderance of the evidence.”); see also Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). The Court recognizes that Tackett is proceeding pro se, without the assistance of an attorney. The Court construes pro se motions more leniently than other motions. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Castro v. United States, 540 U.S. 375, 381-83 (2003).

         Tackett is not entitled to relief

         According to Rule 2(c) of the Rules Governing Section 2255 Proceedings, a movant's petition must:

(1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3) state the relief requested; (4) be printed, typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.

         Liberally construed, Tackett's motion presents one ground for relief and purports to argue that the sentence imposed is incorrect because it is not being served concurrently with a related, but not yet imposed state sentence, according to Setser v. United States.[3] Seemingly, Tackett believes his sixty-six (66) month sentence should be running concurrently with his state court sentence. See R. 173, ¶ 2. Upon review of the transcript of his sentencing hearing and judgment in his case, the Court did not impose a concurrent sentence. See R. 122 at 2 (Judgment noting the term of imprisonment for a total of sixty-six (66) months); R. 176 at 10 (Judge Caldwell at sentencing, noting that Tackett “is hereby committed to the custody of the Bureau of Prisons to be ...

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