United States v. Tackles

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 10 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
No. 02-8114
Plaintiff-Appellee, (D.C. No. 02-CV-67-J and
99-CR-72-J)
v. (D. Wyoming)
JOHN TACKLES,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, McKAY and PORFILIO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This is a pro se 28 U.S.C. § 2255 prisoner appeal. Mr. Tackles pled guilty
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
to possession with intent to deliver methamphetamine. The offense was
committed while he was on probation for an earlier state burglary conviction.
The State revoked Mr. Tackles’ probation, and the federal court sentenced him to
121 months of imprisonment. This sentence was later reduced to 92 months, to
run concurrently with his state sentence.
On February 11, 2002, Mr. Tackles filed a motion to correct and modify his
sentence. He requested that his federal sentence be adjusted to reflect credit for
time he had already served on his state sentence. The district court denied that
motion. On March 22, 2002, Mr. Tackles filed a motion to reconsider, asking that
his February 11, 2002, motion be construed as a § 2255 motion. On April 11,
2002, he also filed a separate § 2255 motion in which he alleged ineffective
assistance of counsel, claiming that his attorney had failed to understand the
guidelines that authorized concurrent sentences. The district court denied both
the March 22 and April 11 motions. Mr. Tackles then filed a motion requesting
that the district court issue a certificate of appealability, which the district court
denied. This appeal followed. 1
1
The district court dismissed Defendant's § 2255 motion on April 26, 2002.
Pursuant to Fed. R. App. P. 4(a)(1)(B), Defendant had sixty days in which to file
a notice of appeal. See Rule 11 of the Rules Governing § 2255 Proceedings. On
June 10, 2002, Defendant filed a motion for a certificate of appealability, which
we construe as a notice of appeal. See United States v. Gonzalez, 1998 WL
847638, at * *1 (10th Cir. Dec. 8, 1998) (unpublished). Accordingly, Defendant's
(continued...)
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In order for this court to grant a certificate of appealability, Petitioner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,The
district court dismissed Defendant's § 2255 motion on April 26, 2002. Pursuant to
Fed. R. App. P. 4(a)(1)(B), Defendant had sixty days in which to file a notice of
appeal. See Rule 11 of the Rules Governing § 2255 Proceedings. On June 10,
2002, Defendant filed a motion for a certificate of appealability, which we
construe as a notice of appeal. See United States v. Gonzalez, 1998 WL 847638,
at * *1 (10th Cir. Dec. 8, 1998) (unpublished). Accordingly, Defendant's motion,
filed within sixty days of the district court's order, was timely. 484 (2000)
(citations and internal quotations omitted).
Mr. Tackles claims that he should be given credit for time served for his
state conviction since his federal sentence is to run concurrent with the state
sentence. However, Mr. Tackles has made no showing that the Bureau of Prisons
incorrectly determined his prior custody credit as explained in 18 U.S.C. §
(...continued)
1
motion, filed within sixty days of the district court's order, was timely.
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3585(b) or U.S.S.G. § 5G1.3(c). Mr. Tackles’ federal sentence was properly
ordered to run concurrently with the undischarged portion of his state sentence.
Mr. Tackles’ state offense was not taken into account in the determination of the
offense level for the federal offense. Therefore, there is no provision in the
Guidelines or the statute for credit to be awarded for time already served under
the state sentence.
Mr. Tackles also claims that he was prejudiced by the ineffective assistance
of his counsel. Specifically, he argues that his attorney failed to object to the
sentence imposed and failed to identify the availability of credits for time served
on the state sentence. As there was no error in the imposition of the sentence and
the determination of credits, Mr. Tackles has made no showing of prejudice due
to the alleged ineffective assistance of his counsel.
We have carefully reviewed Mr. Tackles’ brief, the record on appeal, and
the disposition of the district court. Nothing in the facts, the record on appeal, or
Mr. Tackles’ brief raises an issue which meets our standards for the grant of a
certificate of appealability. We conclude that for substantially the same reasons
as set forth by the district court in its Order of March 6, 2002, we cannot say “that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner.” Id.
We DENY Petitioner’s request for a certificate of appealability and
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DISMISS the appeal. Appellant’s motion to proceed in forma pauperis on appeal
is GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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