United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO VACATE SENTENCE 
STEPHEN J. MURPHY, III United States District Judge.
Randy Nibungco Montante ("Petitioner") pleaded
guilty to one count of production of child pornography, in
violation of 18 U.S.C. §§ 2251(a) and (e). ECF 25.
He was sentenced to 210 months' imprisonment. ECF 48,
PgID 643. On August 3, 2018, Petitioner filed a motion to
vacate his sentence under 28 U.S.C. § 2255. ECF 50. For
the following reasons, the Court will deny the motion.
August 10, 2016, the Government filed a criminal complaint
against Petitioner accusing him of producing and receiving
child pornography and engaging in online enticement of a
minor. ECF 1. Post indictment, Petitioner faced one count of
production of child pornography, in violation of 18 U.S.C.
§§ 2251(a) and (e), one count of coercion and
enticement of a minor, in violation of 18 U.S.C. §
2422(b), one count of receipt of child pornography, in
violation of 18 U.S.C. § 2252(a)(2), and one count of
possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). ECF 10. On February 2, 2017, the
Government offered and Petitioner accepted a Rule 11 Plea
Agreement whereby Petitioner pleaded guilty to one count of
production of child pornography, in violation of 18 U.S.C.
§ 2251(a). ECF 25, PgID 354. The parties agreed to a
sentencing guideline range of 262 months' to 327
months' imprisonment, subject to various determination by
the Court. Id. at 355-56. On August 31, 2017- one
week before Petitioner's sentencing hearing was initially
scheduled-Petitioner filed a motion to substitute his
counsel, ECF 35, that the Court granted, ECF 37. On October
18, 2017, Petitioner filed a motion to withdraw his guilty
plea, ECF 38, which the Court denied, ECF 41. On January 25,
2018, the Court sentenced Petitioner to 210 months'
imprisonment. ECF 48. Petitioner now moves to vacate his
sentence, alleging that his attorney failed to fully
investigate his case and failed to provide him with necessary
information to make a rational decision about whether to
plead guilty or proceed to trial. ECF 50, PgID 712.
prisoner may move to vacate a sentence that was imposed in
violation of the U.S. Constitution. 28 U.S.C. § 2255(a).
The Constitution provides that a criminal defendant shall
"have the Assistance of Counsel for his defense."
U.S. Const. amend. VI. That right to counsel attaches when
the adversary judicial process is initiated. Montejo v.
Louisiana, 556 U.S. 778, 786 (2009). And once the right
attaches, the accused is guaranteed to have counsel at all
critical stages of the criminal proceedings, id.,
including during plea negotiations, Missouri v.
Frye, 566 U.S. 134, 140 (2012). Moreover, the
Constitution does not guarantee just any counsel-it
guarantees "the effective assistance of competent
counsel." McMann v. Richardson, 397 U.S. 759,
apply the Strickland standard to determine whether
the accused received effective assistance of counsel during
plea bargaining. Hill v. Lockhart, 474 U.S. 52, 57
(1985). To prevail under the Strickland standard, a
defendant must show that: (1) his counsel's performance
was deficient, and (2) counsel's deficient performance
prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). To satisfy the first prong, the
defendant must show that his counsel's representation
"fell below an objective standard of
reasonableness." Id. at 688. There is "a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
Groseclose v. Bell, 130 F.3d 1161, 1167 (6th Cir.
1997) (citing Strickland, 466 U.S. at 689)).
reviewing the record, the Court finds that a hearing is
unnecessary. See E.D. Mich. LR 7.1(f)(2). As an
initial matter, Petitioner's motion to vacate his
sentence primarily attempts to rehash arguments he made in
his motion to withdraw his guilty plea, that the Court
already ruled on and Petitioner did not appeal. See
ECF 38, 41. Section 2255 is not a substitute for direct
appeal. See United States v. Addonizio, 442 U.S.
178, 184 (1979). When a defendant does not raise a claim on
appeal, he is generally barred from raising it in a §
2255 motion. Massaro v. United States, 538 U.S. 500,
503 (2003). Because Petitioner failed to appeal the
Court's denial of his motion to withdraw his plea, his
claims pertaining to his prior counsel-Mr.
Schulman's-effectiveness during the plea negotiations are
Petitioner has not shown by a preponderance of the evidence
that Mr. Schulman's performance was deficient. Based on
the record and the submitted affidavits and evidence, Mr.
Schulman sufficiently prepared for the case and the plea
negotiations, provided all necessary information to
Petitioner relating to his plea, and discussed the
consequences of accepting the plea agreement with Petitioner.
As the Court already held, Petitioner "was not deprived
of any evidence to which he was entitled prior to his
plea," and Mr. Shulman did not fail to meaningfully
negotiate the plea and discuss it with him. ECF 41, PgID 579.
Petitioner's statements and affidavit now stating that he
was deprived of discovery and effective counsel during his
plea negotiations are unpersuasive.
addition to Petitioner's obvious incentives to be
untruthful, his allegations are inconsistent with the
acknowledgments he made to the Court, the affidavit of Mr.
Schulman, and the advice he received about the plea agreement
from a different attorney-Mr. Collins. ECF 25, PgID 364
(written acknowledgment that Petitioner "has read (or
been read) this entire [plea agreement], understands it, and
agrees to its terms," that he "is satisfied with
his attorney's advice and representation," that he
"had a full and complete opportunity to confer with his
lawyer," and that he "had all of his questions
answered by his lawyer."); ECF 39, PgID 508-12 (oral
acknowledgment that Petitioner was competent to plead guilty,
that he "discussed [his] case completely with Mr.
Schulman," that he understood all advice from Mr.
Schulman, that he was proceeding with his plea on his own
volition because he is "actually guilty," that he
understood the consequences of a guilty plea); ECF 57-2 (Mr.
Schulman's affidavit). When he entered his guilty plea,
Petitioner engaged in a lengthy colloquy with the Court,
during which he confirmed that he "discussed his case
completely" with his former attorney, that it was his
decision to plea, and that he pled because he was
"actually guilty." ECF 39, PgID 509-10. Mr.
Schulman's representation during the case did not fall
below an objective standard of reasonableness.
these reasons, there was not a constitutional violation, and
Petitioner is not entitled to relief under 28 U.S.C. Â§
2255(a). The Court therefore denies Petitioner's motion.
it is hereby ORDERED that Defendant
Petitioner's motion to ...