Tackett v. United States, CASE NO. 2:13-CV-00506
| Decision Date | 21 November 2014 |
| Docket Number | CASE NO. 2:13-CV-00506,CRIM. NO. 2:10-CR-00140 |
| Parties | STEVEN R. TACKETT, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Petitioner Steven R. Tackett, a federal prisoner, brings the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the instant motion, ECF No. 49, Petitioner's Memorandum in Support and Supplement, ECF Nos. 66, 76, Respondent's Response in Opposition, ECF No. 79, and Petitioner's Reply, ECF No. 100. For the reasons that follow, the Magistrate Judge RECOMMENDS that the Section 2255 motion be DENIED and that this action be DISMISSED. Petitioner's request for an evidentiary hearing is DENIED. Petitioner's Motion for Status, ECF Nos. 101, 102, are DENIED, as moot.
On July 9, 2010, Petitioner pleaded guilty, pursuant to the terms of his June 23, 2010, negotiated Plea Agreement to sexual exploitation of children under 18 U.S.C. § 2251(a), and (e). ECF Nos. 16, 22. On May 6, 2011, the Court imposed a sentence of 265 months incarceration plus a life-time of supervised release. ECF Nos. 38, 39. On February 29, 2012, the United States Court of Appeals for the Sixth Circuit affirmed the judgment of this Court. ECF No. 47. On March 23, 2012, the mandate issued. ECF No. 48.
On May 24, 2013, Petitioner filed the instant pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.1 He asserts that he was denied effective assistance of trial counsel because his attorney failed to consult with him regarding the PreSentence Investigation Report and induced him to lie (claim one); denied effective assistance of counsel due to a conflict of interest (claim two); denied effective assistance of appellate counsel because his attorney failed to raise on appeal a claim that the Court improperly sentenced him on the wrong charge and appellate counsel failed to consult with or provide him a copy of the record (claim three); denied the right to be present at his guilty plea hearing (claim four); forced to plead guilty by defense counsel's inducement and threats and did not understand the nature of his conviction (claim five); convicted in violation of the Fourth Amendment (claim six); and that the evidence is constitutionally insufficient to sustain his conviction and does not constitute a crime (claim seven).
It is the position of the Respondent that Petitioner's claims are waived or otherwise fail to provide a basis for relief.
To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or the trial court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by law, or is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6thCir. 1991). Apart from constitutional error, the question is "whether the claimed error was a 'fundamental defect which inherently results in a complete miscarriage of justice,'" Davis v. United States, 417 U.S. 333, 346 (1974)(quoting Hill v. United States, 368 U.S. 424, 428-429 (1962); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). Claims of a nonconstitutional dimension that a petitioner failed to raise at trial or on direct appeal are waived for collateral review except where the errors amount to something akin to a denial of due process.
It is well-established that a Section 2255 motion "is not a substitute for a direct appeal." Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained via a motion under Section 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claims previously; or (2) that he is "actually innocent" of the crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted).
On June 23, 2010, Petitioner signed a Plea Agreement indicating, inter alia, that he was pleading guilty to sexual exploitation of children, as charged in Count One of the Indictment and that the remaining charges would be dismissed. The government agreed not to pursue any additional charges related to this conviction. Petitioner indicated that he understood he faced a mandatory minimum term of fifteen years and up to thirty years of incarceration, and that any estimate of a probable sentence he had received from defense counsel or the prosecution was not binding on the Court, which would make the final determination of his sentence. Petitioneracknowledged that no additional promises or agreements had been made to induce his guilty plea. Plea Agreement, ECF No. 16.
At the July 9, 2010 hearing, the prosecutor reviewed the terms of the foregoing Plea Agreement. Specifically, the prosecutor indicated that Petitioner was pleading guilty to sexual exploitation of children, as charged in Count One of the Indictment, under which Petitioner faced a mandatory minimum term of fifteen years and up to thirty years imprisonment. Guilty Plea Hearing, ECF No. 75, PageID# 346-351. Under the terms of the Plea Agreement, Petitioner understood that the Court had not yet determined a sentence, any estimate of a probable sentence was a prediction, not a promise, and was not binding, and that he would be unable to withdraw his plea of guilty based on the actual sentence imposed. PageID# 347.
Petitioner agreed with those terms. He stated that it was his desire to plead guilty. PageID# 351. He denied being under the influence of drugs or alcohol and understood the proceedings. PageID# 352-53. Petitioner acknowledged that he had been provided ample time to review the case with his attorney. He was satisfied with his attorney's representation. PageID# 353.
The Court advised Petitioner of all of the rights he was waiving by entering a guilty plea. PageID# 353-55. Petitioner at all times indicated that he understood. Petitioner testified that had reviewed the Plea Agreement with his attorney before he signed it. He denied being made any other promises or assurances to induce his guilty plea. He denied being threatened or forced into entering a guilty plea. He denied being made any prediction or promises regarding the sentence that would be imposed. PageID# 356. He further stated that prior to signing the Plea Agreement, he had reviewed with his attorney everything he knew about the charges. His attorney had advised Petitioner of the applicable law. PageID# 357-58.
The District Court advised Petitioner of all of the elements of the charge against him and informed Petitioner he faced a mandatory minimum term of fifteen years, and up to thirty years imprisonment. Petitioner indicated he understood. PageID# 358-59.
The government summarized the facts:
On or about March 26, 2010, the National Center for Missing Children's Cyber Tipline received a complaint from Photobucket, a public-available photo-sharing website The complaint alleged that, on or about March 23, 2010, eight digital images were uploaded to a Photobucket account registered to a subject using the email address of Steve_Tackett@yahoo.com. Investigation confirmed that the email address came back to an individual that had listed the same date of birth as the defendant, Steven R. Tackett. Six of the digital images posted to Photobucket depicted a nude prepubescent female posted with her legs spread, the focal point of the images being the child's vagina. One of the images also depicted a close-up of an adult's fingers spreading open the nude prepubescent female'[s vagina.
The National Center for Missing and Exploited Children was able to access the metadata from the photos and was able to determine that the images had been taken with a Samsung SCH-U540 cell phone. Subsequent investigation revealed that the Samsung phone was manufactured outside the state of Ohio and, thus, had traveled in interstate commerce.
Investigators also determined that the IP address from which the digital photos were uploaded resolved to the Cardington Lincoln Library in Cardington, Ohio. Investigators contacted the library, reviewed library records, and confirmed that Steven Tackett was logged onto the computer system at the library on March 23rd during the same approximate time period when the digital images of child pornography were uploaded to the Photobucket account.
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