United States District Court, E.D. Kentucky, Southern Division
B. ATKINS UNITED STATES MAGISTRATE JUDGE.
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)].
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.
AND PROCEDURAL HISTORY
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
February 11, 2019, Tackett filed a motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255. [R.
173]. 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. 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].
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)).
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).
is not entitled to relief
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.
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. 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 ...