VIRGINIA EMERSON HOPKINS, Senior 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),
On June 29, 2016, the Grand Jury returned an Indictment (Criminal Case 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).
Collateral attack is not a substitute for direct appeal. Accordingly, Section 2255 provides federal prisoners with an avenue for relief under limited circumstances:
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).
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))).
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,
In his written Plea Agreement, Petitioner agreed that the following facts are substantially correct:
(Criminal Case doc. 29 at 2-6).
The Government interpreted this issue as a challenge to this Court's subject matter jurisdiction. (See doc. 5 at 3 ("Because [Petitioner's] criminal case charged him with offenses against the laws of the United States . . . the Court had authority to hear it.")). "Subject-matter jurisdiction defines the court's
Alternatively, liberally construing pro se Petitioner's first issue not as a challenge to the Court's authority (that is, its subject matter jurisdiction), but instead as a challenge to the propriety of this Court's exercise of that authority (that is, venue), then that challenge has been waived because it was not raised before Petitioner's conviction. This is because, although a criminal defendant has a constitutional right to be tried in the jurisdiction where the crime was committed, this "constitutional venue" right, like other venue rights, can be waived. United States v. Roberts, 308 F.3d 1147, 1151-52 (11th Cir. 2002) ("A defendant may waive such right, however, by failing to raise a venue objection prior to trial." (citing United States v. Dabbs, 134 F.3d 1071, 1078 (11th Cir. 1998)))
Petitioner's ineffective assistance claim is all based on two incorrect premises. First is his assertion that this Court lacked subject matter jurisdiction and therefore his attorney was ineffective for not challenging his Indictment on that basis. (See doc. 1 at 6; doc. 2 at 5). However, as explained above, this Court indeed had subject matter jurisdiction. A challenge to this Court's jurisdiction would have failed.
Second, Petitioner asserts that because he was convicted of attempted production of child pornography, as opposed to having been convicted of "completed" production of child pornography, his sentence should have been "one half of the sentence of the completed offense of Production of Child Pornography." (Doc. 2 at 5).
Petitioner next argues that his sentence "unduely [sic] exaggerates the criminality of the alleged offense[] [that] [he] stands convicted of" (doc. 1 at 7) and that "[t]he sentence imposed is unduely [sic] exaggerated." (Doc. 2 at 5-6). As stated above, the sentence imposed was the statutory mandatory minimum for the crime of conviction. Thus, in his Plea Agreement, Petitioner has waived any non-constitutionally based challenge to his sentence.
The only constitutionally based challenge that the Court can perceive here is one based on the Eighth Amendment to the United States Constitution. The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. In determining whether a sentence for a period of years constitutes cruel or unusual punishment (rather than the manner of punishment), the Supreme Court has recognized that "[t]he Eighth Amendment[] . . . contains a narrow proportionality principle that applies to noncapital sentences." Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 1185, 155 L. Ed. 2d 108 (2003) (internal quotation marks omitted) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S.Ct. 2680, 2702-03, 115 L. Ed. 2d. 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment)) (citing Weems v. United States, 217 U.S. 349, 371, 30 S.Ct. 544, 550-51, 54 S.Ct. 793 (1910); Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420-21, 8 L. Ed. 2d 758 (1962)).
If Petitioner is asserting that the statutory mandatory minimum sentence is per se a violation of the Eighth Amendment's prohibition on cruel and unusual punishment, his claim fails. This is because, in non-capital cases, the Eighth Amendment encompasses, at most, only a narrow proportionality principle. Harmelin, 501 U.S. at 996-97 (Kennedy, J., concurring in part and concurring in the judgment).
If Petitioner is not asserting a per se violation, but rather is asserting that such sentence is cruel and unusual as applied to him, his claim still fails. The Supreme Court has acknowledged that it has "not established a clear or consistent path for courts to follow" when faced with a proportionality question. Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 1173, 155 L. Ed. 2d 144 (2003) (citing Ewing, 538 U.S. at 20-23). However, that Court has made clear that the Eighth Amendment "does not require strict proportionality between crime and sentence[,] . . . . forbid[ding] only extreme sentences that are `grossly disproportionate' to the crime." Ewing, 538 U.S. at 23 (quoting Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring in part and concurring in the judgment)). Thus, "[t]he gross disproportionality principle reserves a constitutional violation for only the extraordinary case." Lockyer, 538 U.S. at 77.
To determine if a sentence violates the Eighth Amendment, this Court first compares the crime committed to the sentence imposed and determines whether any disparity creates an inference of gross disproportionality. See United States v. Farley, 607 F.3d 1294, 1344 (11th Cir. 2010). Petitioner bears the burden of making the threshold showing of gross disproportionality. United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (citing United States v. Raad, 406 F.3d 1322, 1324 n.4 (11th Cir. 2005)).
Here, Petitioner has wholly failed to demonstrate this his sentence is grossly disproportionate. And a review of cases in this Circuit reveals that it is not. See Johnson, 451 F.3d at 1242-44 (finding, in a case of producing and distributing child pornography, that the 140-year sentence that was within the statutory limits and less than the life sentence prescribed by the Guidelines did not trigger the need for proportionality review); see also United States v. Guite, 652 F. App'x 829, 834-35 (11th Cir. 2016) (unpublished) ("[W]e have regularly found life sentences in child sex crimes do not violate the Eighth Amendment."), cert. denied, 137 S.Ct. 1108, 197 L. Ed. 2d 211 (2017).
To the extent Petitioner requests that this Court order the Bureau of Prisons to award him certain jail credit for time served in state custody, the Court notes that, in the Judgment of Conviction, Petitioner was expressly given "credit for all time in custody from and including May 4, 2016." (Criminal Case doc. 38 at 2). In any event, "the Attorney General, acting through the Bureau of Prisons, and not this Court, is responsible for computing any sentencing credits available to [Petitioner]." United States v. Buckhault, No. 98-146, 2009 WL 385584, at *1 (S.D. Ala. Feb. 12, 2009) (citing United States v. Williams, 425 F.3d 987, 990 (11th Cir. 2005)); see Travieso v. Fed. Bureau of Prisons, Warden, 217 F. App'x 933, 935 (11th Cir. 2007) ("[T]he Supreme Court has held that the Attorney General, through the Bureau of Prisons, as opposed to the district courts, is authorized to compute sentence credit awards after sentencing." (citing United States v. Wilson, 503 U.S. 329, 333-35, 112 S.Ct. 1351, 1354-55, 117 L. Ed. 2d 593 (1992))). Further, "[t]he . . . Bureau of Prisons, not this Court, has exclusive authority to determine whether a defendant should receive credit for time spent in custody before the federal sentence commences." United States v. Nettles, No. 09-14, 2010 WL 5421340, at *1 (S.D. Ala. Dec. 27, 2010) (citing 18 U.S.C. § 3585; Williams, 425 F.3d at 990; Galloway v. Fisher, No. 08-82, 2008 WL 4057803, at *3 (N.D. Fla. Aug. 27, 2008)). Therefore, Petitioner must first exhaust the administrative procedures provided by the Bureau of Prisons for requesting sentence credits before seeking review in this Court. See, e.g., United States v. Flanagan, 868 F.2d 1544, 1546 (11th Cir. 1989) ("[A] federal prisoner dissatisfied with the computation of his sentence must pursue the administrative remedy available through the federal prison system before seeking judicial review of his sentence." (citing, inter alia, United States v. Morgan, 425 F.2d 1388, 1390 (5th Cir. 1970)
The record before the Court does not indicate that Petitioner has pursued or exhausted his administrative remedies. Accordingly, this claim is not ripe for judicial review, see United States v. Roberson, No. 18-10575, 2018 WL 3996538, at *2 (11th Cir. Aug. 20, 2018), and it will be denied for that reason.
Alternatively, this claim will be denied because this Court lacks jurisdiction to hear this claim. Although Petitioner brought his claim for jail credit pursuant to Section 2255, his claim attacks the execution—and not the validity—of his sentence. See Collins v. Flournoy, No. 14-459, 2016 WL 4154924, at *2 (N.D. Fla. June 30, 2016) (stating, when the petitioner challenged "the decision of the [Bureau of Prisons] [to deny] her jail credit on her federal sentence for the time she spent in state custody," that she was "challeng[ing] the
All four of Petitioner's claims fail. First, his jurisdictional challenge fails when construed as a challenge to this Court's subject matter jurisdiction because this Court had subject matter jurisdiction over Petitioner's criminal case. This challenge also fails when construed as a challenge to venue because Petitioner has waived that challenge. Second, his ineffective assistance claim fails because it is all based on two incorrect premises. Thus, defense counsel could not be ineffective for the reasons Petitioner argues. Third, his excessive sentence claim fails because his sentence is not grossly disproportionate to the crime committed. Fourth, his claim for jail credit fails because it is not ripe for judicial review and, alternatively, this Court lacks jurisdiction to hear this claim.
For the reasons stated above, the Petition is due to be
