United States District Court, E.D. Tennessee
A. Varlan CHIEF UNITED STATES DISTRICT JUDGE.
Petitioner, Ricky Dale Dotson, II (“Dotson”),
pursuant to a plea agreement [Doc. 15],  entered a guilty
plea to one count of possessing a firearm as a convicted
felon [Doc. 17]. This Court sentenced Dotson to a below
guidelines range sentence of 42 months' imprisonment, to
be served concurrently to a state sentence from McMinn
County, Tennessee, Criminal Court for aggravated burglary
[Doc. 31]. Dotson did not appeal his conviction or sentence.
the Court now is Petitioner's pro se motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 [Doc. 35]. The government filed a response in
opposition [Doc. 40].
obtain relief pursuant to 28 U.S.C. § 2255, a petitioner
must demonstrate “(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.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (quoting Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He
“must clear a significantly higher hurdle than would
exist on direct appeal” and establish a
“fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
presents a claim of ineffective assistance of counsel in his
§ 2255 motion. He asserts that counsel was ineffective
in failing to ask the Court to credit Dotson's federal
sentence for the twenty months before sentencing that he
spent in state custody. It is the opinion of this Court that
this claim does not warrant relief.
petitioner alleging ineffective assistance of counsel must
satisfy the two-part test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1987). See Huff v.
United States, 734 F.3d 600, 606 (6th Cir. 2013)
(applying the Strickland test to an ineffective
assistance of counsel claim). First, the petitioner must
establish, by identifying specific acts or omissions, that
counsel's performance was deficient and that counsel did
not provide “reasonably effective assistance, ”
Strickland, 466 U.S. at 687, as measured by
“prevailing professional norms.” Rompilla v.
Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to
have provided effective assistance, and a petitioner bears
the burden of showing otherwise. Mason v. Mitchell,
320 F.3d 604, 616-17 (6th Cir. 2003); see also
Strickland, 466 U.S. at 689 (stating that a reviewing
court “must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that . . . the challenged
action might be considered sound . . . strategy”
(internal citation omitted)).
a petitioner must demonstrate “a reasonable probability
that, but for [counsel's acts or omissions], the result
of the proceedings would have been different.”
Strickland, 466 U.S. at 694. “An error by
counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment.”
Id. at 691; see also Smith v. Robbins, 528
U.S. 259, 285-86 (2000). If a petitioner fails to prove that
he sustained prejudice, the Court need not decide whether
counsel's performance was deficient. See United
States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006)
(holding that alleged “flaws” in trial
counsel's representation did not warrant new trial where
the claims, even if true, did not demonstrate that the jury
would have reached a different conclusion).
argues that his counsel “should have asked the court to
give [him] credit” and “deduct. . . [from his]
total sentence” the twenty months that his sentence was
delayed to permit additional cooperation that yielded a
§ 5K.1 motion for downward departure [Doc. 35-1 p. 2].
The Court, however, agrees with the government that
“the power to grant credit for time served lies solely
with the Attorney General and the Bureau of Prisons, ”
not this Court. United States v. Crozier, 259 F.3d
503, 520 (6th Cir. 2001); accord United States v.
Basquez, 421 F. App'x 519, 525 (6th Cir. 2010).
Moreover, determinations regarding jail credit are made
after, not during, sentencing. See United States v.
Wilson, 503 U.S. 329, 334 (1992) (holding that 18 U.S.C.
“§ 3585(b) does not authorize a district court to
compute the credit at sentencing”); see also United
States v. Terry, 574 F. App'x 579, 582 (6th Cir.
2014) (noting that a sentencing court rightly “declined
to calculate any credit for time served” and
“properly left that calculation to the BOP”).
Accordingly, the Court finds that Dotson's counsel did
not render constitutionally ineffective service by not
demanding that petitioner receive credit for time served on a
government also argues that Dotson concedes that he was in
state custody-and thus received credit for the time toward a
state sentence-during the time for which he is requesting
federal jail credit. The Sixth Circuit has held that
“time which has been credited towards service of a
state sentence may not be ‘double counted' against
a federal sentence.” United States v. Lytle,
565 F. App'x 386, 392 (6th Cir. 2014).
the Court finds that because the claim presented in the
Motion [Doc. 35] lacks merit, Petitioner is not entitled to
relief pursuant to 28 U.S.C. § 2255. A hearing is
unnecessary in this case. Accordingly, the Court will
DENY Petitioner's motion [Doc. 35].
addition, the Court will CERTIFY that any appeal from this
action would not be taken in good faith and would be totally
frivolous. Therefore, this Court will DENY Petitioner leave
to proceed in forma pauperis on appeal. See
Fed. R. App. P. 24. Petitioner has failed to make a
substantial showing of the denial of a constitutional right,
therefore, a certificate of appealability SHALL NOT ISSUE. 28
U.S.C. § 2253; Fed. R. App. P. 22(b).