United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO VACATE
SENTENCE (ECF #41)
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE
January 30, 2015, Defendant Joshua Tucholski
(“Tucholski”) pleaded guilty to one count of
distribution of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The Court sentenced Tucholski to 132
months of incarceration. (See ECF #37.) Tucholski
has now filed a motion to vacate his sentence under 18 U.S.C.
§ 2255 (the “Motion to Vacate”).
(See ECF #41) For the reasons stated below, the
Motion to Vacate is DENIED.
August 27, 2014, a federal grand jury returned a three count
indictment against Tucholski (the “Indictment”).
(See ECF #12.) Count I of the Indictment charged
Tucholski with distribution of child pornography in violation
of 18 U.S.C. § 2252A(a)(2). (See Id. at 1-2,
Pg. ID 32-33.) Count II charged Tucholski with receiving
child pornography in violation of 18 U.S.C. §
2252A(a)(2). (See Id. at 2, Pg. ID 33.) Finally,
Count III charged Tucholski with possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
chose to plead guilty, and on January 30, 2015, he entered
into a Rule 11 plea agreement with the Government (the
“Plea Agreement”). (See ECF #24.) In the
Plea Agreement, Tucholski agreed to plead guilty to Count I
of the Indictment and the Government agreed to dismiss Counts
II and III. (See id.)
with the Plea Agreement, Tucholski and the Government
submitted sentencing guideline worksheets that were identical
with one exception. The Government maintained that when the
Court calculated Tucholski's sentencing guidelines range,
it should include a guideline enhancement for
“[e]ngaging in a pattern of activity involving the
sexual abuse or exploitation of a minor” (the
“Enhancement”). (See Id. at 3-4, Pg. ID
85-86.) The Government recommended that the Court set
Tucholski's sentencing guideline range, including the
Enhancement, at 262-327 months. (See Id. at 4, Pg. ID
86.) On the other hand, Tucholski recommended that the Court
exclude the Enhancement and adopt a sentence guideline range
of 151-188 months. (See id.) The parties then agreed
that “[t]he Court [would] resolve the parties'
disagreement of the applicable [g]uidelines range …
and [would] determine which [g]uidelines range
applie[d].” (Id. at 5, Pg. ID 87.) Tucholski
further agreed that if the Court sentenced him to a term of
imprisonment that did not exceed the top of the guidelines
range that the Court determined was proper, he would waive
his right to appeal his sentence. (See Id. at 8-9,
Pg. ID 90-91.)
to Tucholski's sentencing, the Court entered a written
order in which it resolved the parties' dispute over the
Enhancement in Tucholski's favor. (See ECF #33.)
In that Order, the Court held that it would not apply the
Enhancement when it calculated Tucholski's sentencing
guideline range. (See Id. at 7, Pg. ID 196). The
Court ultimately agreed with Tucholski and set his sentencing
guideline range at 151-188 months.
appeared before the Court for sentencing on September 14,
2015. The Court sentenced Tucholski to 132 months
imprisonment. (See Judgment, ECF #37 at 2, Pg. ID
222.) Tucholski did not object to the Court's guideline
calculation or any other aspect of his sentence. Importantly,
this sentence was below the sentencing guideline
range that Tucholski recommended in the Plea Agreement and
that the Court ultimately adopted. Tucholski did not appeal
either or his conviction or his sentence on any ground.
September 6, 2016, Tucholski filed the Motion to Vacate.
(See ECF #41.) In the Motion to Vacate, Tucholski
argues, among other things, that his sentencing guideline
range was improperly calculated and included enhancements
that wrongly increased his guidelines range. (See
Id. at 4, Pg. ID 312.) Tucholski does not raise an
ineffective assistance of counsel argument. The Government
responded to the Motion to Vacate on October 21, 2016.
(See ECF #45.) Tucholski filed a reply brief on
November 21, 2016. (See ECF #49.)
seeks relief under 28 U.S.C. § 2255. “An
application under § 2255 is an extraordinary remedy and
should not be considered a substitute for direct
appeal.” Capaldi v. Pontesso, 135 F.3d 1122,
1124 (6th Cir. 1998); see also Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003)
(“Section 2255 is not a substitute for a direct appeal,
and thus a defendant cannot use it to circumvent the direct
appeal process”). Where, as here, a defendant
“has failed to assert his claims on direct appeal and
thus has procedurally defaulted, in order to raise them in a
§ 2255 motion he also must show either that (1) he had
good cause for his failure to raise such arguments and he
would suffer prejudice if unable to proceed, or (2) he is
actually innocent.” Regalado, 334 F.3d at 528.
This “cause and prejudice standard applies to a
defendant who pleads guilty and first asserts a claim for
relief in a collateral proceeding.” Id.
did not file a direct appeal of his sentence. Thus, Tucholski
can obtain relief on the claims raised in the Motion to
Vacate only if he can show “cause and prejudice”
for his failure raise these claims on direct appeal. See,
e.g., Akridge v. United States, 42 F.3d 1388, at *1 (6th
Cir. Nov. 21, 1994) (Table) (applying “cause and
prejudice” standard to defendant who waived right to
appeal sentence in plea agreement and affirming denial of
motion to vacate under Section 2255).
has not shown the required “cause.” In his reply
brief, Tucholski attempts to establish “cause” by
arguing that he did not appeal his sentence because he was
“scared of retaliation” from the Government.
(See Reply Br. at 2, ECF #49 at 2, Pg. ID 405.)
Tucholski insists that had he appealed his sentence, the
Government would have “reindict[ed] him for more
charges.” (Id. at 2-3, Pg. ID 405-06.) But
Tucholski has not provided the Court any authority for the
proposition that his “fears” the Government would
“reindict” him or would have otherwise attempted
to increase his sentence satisfy the “cause”
requirement under Section 2255. Nor has Tucholski presented
anything other than idle speculation that the Government
would have taken such action had he filed an ...