Opinion
Criminal 3:19-cr-30005-PKH-MEF-1 Civil 3:23-cv-03005-PKH-MEF
01-12-2024
UNITED STATES OF AMERICA PLAINTIFF v. LUCAS MONTAGNE DEFENDANT
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE
Before the Court is the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 62) filed on January 6, 2023. The case was referred to the undersigned on January 13, 2023. Defendant filed a Memorandum of Law in Support of Motion Pursuant to 28 U.S.C. § 2255 on March 7, 2023. (ECF No. 68). The Government filed its Response on June 29, 2023. (ECF No. 73). Defendant filed a Reply on October 3, 2023. (ECF No. 76). The matter is ready for report and recommendation.
The motion was received and docketed on January 13, 2023, but Montagne declared under penalty of perjury that he placed the motion in the prison mailing system on January 6, 2023, so by virtue of the “prison mailbox rule” it is considered filed on that date. Rule 3(d) of the Rules Governing Section 2255 Proceedings.
I. BACKGROUND
On May 24, 2019, a Criminal Complaint was filed against Defendant, Lucas Montagne (“Montagne”), charging that on or about February 23, 2019, through May 18, 2019, in the Western District of Arkansas, Montagne committed the offenses of Production of Child Pornography, in violation of 18 U.S.C. § 2251(a), and Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). (ECF No. 1). The Criminal Complaint alleged that Montagne took photographs with his cellular telephone of two male minors, approximately eight to nine years old, engaged in sexually explicit conduct, and that he was in possession of a cellular telephone containing images of minors engaging in sexually explicit conduct. (Id.). Montagne was arrested on the same date. (ECF No. 8). An initial appearance was held on May 29, 2029, at which time an Assistant Federal Public Defender, James B. Pierce (“Pierce”), was appointed to represent Montagne, who then waived the issues of probable cause and detention. (ECF Nos. 4, 6).
On June 26, 2019, Montagne was named in an Indictment charging him with: two counts of Aggravated Sexual Abuse of a Minor, in violation of 18 U.S.C. § 2241(c) (Counts One and Five); four counts of Production of Child Pornography, in violation of 18 U.S.C. §§ 2251(a) and (e) (Counts Two, Three, Four and Six); one count of Possession of Child Pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) (Count Seven); and one count of Commission of a Felony Offense Against a Minor by a Registered Sex Offender, in violation of 18 U.S.C. § 2260A (Count Eight). (ECF No. 9). The Indictment also contained a special allegation that at the time Montagne committed the offenses in the Indictment, he had previously been convicted on or about September 26, 2013, in Montgomery County, Texas, of Sexual Assault [of a] Child, in violation of Texas Penal Code 22.011(a)(2)(B), and with having been convicted on or about February 7, 2014, in Harris County, Texas, of Sexual Assault - Child Under 17, in violation of Texas Penal Code 22.011. (Id.). Montagne appeared for arraignment on July 3, 2019, at which time he entered a not guilty plea to the Indictment. (ECF No. 14). Pierce requested discovery on behalf of Montagne in open court. (Id.).
A jury trial was initially set on August 19, 2019 (ECF No. 15), and then continued until October 21, 2019 (ECF Nos. 20, 23). The jury trial was cancelled on October 3, 2019, and a change of plea hearing was scheduled for October 10, 2019. (ECF No. 31).
Montagne appeared with his appointed counsel before the Hon. P. K. Holmes, III, United States District Judge, on October 10, 2019, for a change of plea hearing. (ECF Nos. 32, 56). No plea agreement was presented to the Court, but Montagne stated his intent to enter an open plea of guilty to Count Three of the Indictment (charging him with Production of Child Pornography, in violation of 18 U.S.C. §§ 2251(a) and (e)), while maintaining his not guilty plea as to the other counts of the Indictment. (ECF Nos. 32, 32-1, 56).
Montagne informed the Court that he had discussed the charges in the Indictment with his appointed counsel, and that he was satisfied with the counsel, representation, and advice he received from Mr. Pierce. (ECF No. 56, p. 4). The Court reviewed the eight-count Indictment with Montagne, including the special allegation concerning his prior Texas sex offense convictions in 2013 and 2014, and the Court explained to Montagne that because of those prior sex offense convictions, and under 18 U.S.C. § 3559(e), conviction on any of the counts of the Indictment subject to the Special Allegation (Counts One through Six) would result in a mandatory life sentence. (Id., pp. 4-5). Montagne confirmed his wish to plead guilty to Count Three of the Indictment and the special allegation. (Id., p. 5). He stated that no promises or assurances had been made to him to get him to enter an open plea of guilty to Count Three, and that nobody was forcing him to plead guilty to Count Three. (Id., p. 7). The Court informed Montagne of the consequences of a guilty plea, telling him:
“Now, if you plead guilty to Count III and the special allegation which we will go over in a minute, there are certain maximum penalties for that offense. In general, a maximum term of imprisonment of 30 years and a mandatory minimum term of 15 years, but in your case, a mandatory term of imprisonment for life on the basis of prior convictions and special allegation.” (Id., pp. 7-8) (emphasis added).Montagne told the Court that he understood. (Id., p. 8). Montagne's Constitutional rights were explained to him, and he confirmed that his counsel had also explained these rights and consequences to him. (Id., pp. 10-12). The Court reviewed the essential elements of the charge with Montagne. (Id., pp. 12-13). A written statement of Montagne's intent to plead guilty was given to the Court (ECF No. 32-1), and its stipulation of facts supporting the guilty plea and the special allegation was read into the record. (Id., pp. 13-18). Montagne confirmed that he had signed the written statement and stipulation, and he agreed that the Government could prove the facts contained in the stipulation if the case were to go to trial. (Id., p. 19). Montagne then pleaded guilty to Count Three of the Indictment and he admitted the prior convictions alleged in the special allegation. (Id., p. 20). The Court found that Montagne's guilty plea to Count Three of the Indictment was knowing and voluntary; that there was an independent basis in fact containing all the essential elements of the offense charged; and the Court accepted Montagne's guilty plea and found him guilty of Count Three of the Indictment. (Id., p. 22).
The Government subsequently moved to dismiss the remaining counts of the Indictment, which motion was granted by the Court on October 17, 2019. (ECF Nos. 35, 36).
An Initial Presentence Investigation Report (“PSR”) was prepared by the United States Probation Office on December 17, 2019. (ECF No. 39). On December 30, 2019, Montagne advised that he had three objections to the initial PSR. (ECF No. 41). One objection concerned Paragraph 57 of the PSR which reported that “[w]hether or not a victim can be identified, child pornography always has victims,” and the inclusion of a victim statement (concerning victimization related to the sexual exploitation of children and child pornography) from someone other than the two specific children involved in Montagne's offense conduct. (Id., p. 1). A second objection concerned Montagne's 2013 convictions for driving on a suspended license and harboring a runaway child. (Id., pp. 1-2). His third objection was to Paragraph 132 of the PSR which reported that during his Arkansas Sex Offender Community Notification Assessment (“SOCNA”) interview he stated that “he does not feel he has a sexual behavior problem and is not willing to engage in sex offender treatment.” (Id., p. 2). None of Montagne's objections to the PSR affected the guidelines calculation. The Probation Officer made no changes to the final PSR based on Montagne's objections, noting that the information reported in the PSR was correct. (ECF No. 43-1, pp. 3-4). Montagne did not object to the PSR's report of his two prior convictions in Texas for sexual assault of a minor (ECF No. 39, ¶¶ 100, 103), nor to the PSR's conclusion that he was a repeat and dangerous sex offender against minors (Id., ¶ 106).
On December 31, 2019, the Government advised that it had six objections to the PSR, none of which were guideline determinative, but instead, sought factual corrections or the inclusion of additional information. (ECF No. 42). The Probation Officer noted revisions to the final PSR to include the information sought to be added by the Government. (ECF No. 43-1, pp. 1-3).
A Final PSR was submitted to the Court on January 7, 2020. (ECF No. 43). The final PSR determined that Montagne's offense conduct related to Count Three of the Indictment (involving victim “John Doe 1”) called for a base offense level of 32. (Id., ¶ 63). Because the offense involved a minor who had not attained the age of 12 years, the offense level was increased by four levels. (Id., ¶ 64). A two-level increase was assessed because the offense involved the commission of a sexual act or sexual contact. (Id., ¶ 65). Because Montagne knowingly engaged in distribution, a two-level increase was assessed. (Id., ¶ 66). Finally, a two-level enhancement was made because the minor victim was in the custody, care, and supervisory control of Montagne at the time of the offense conduct. (Id., ¶ 67). Due to these enhancements, Montagne's adjusted offense level for Count Three was determined to be 42. (Id., ¶ 71).
Montagne's relevant conduct (involving victim “John Doe 2”) also called for a base offense level of 32. (ECF No. 43, ¶ 72). The same enhancements noted above also applied to Montagne's relevant conduct, raising Montagne's adjusted offense level for his relevant conduct to 42. (Id., ¶ 80).
A two-level multiple count adjustment was made, pursuant to U.S.S.G. § 3D1.4, resulting in a combined adjusted offense level of 44. (ECF No. 43, ¶¶ 81-84). Montagne was determined to be a repeat and dangerous sex offender against minors, pursuant to U.S.S.G. § 4B1.5(a), but no further enhancement under Chapter Four was made. (Id., ¶ 85). After a three-level reduction for acceptance of responsibility, Montagne's total offense level was 41. (Id., ¶¶ 87-89).
Montagne's extensive criminal history resulted in a criminal history score of 16, placing him in criminal history category VI. (ECF No. 43, ¶¶ 105-106).
The Final PSR advised that pursuant to 18 U.S.C. § 3559(e), a person convicted of a federal sex offense in which the victim is a minor shall be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was a victim. (ECF No. 43, ¶ 147). Based upon a total offense level of 41 and a criminal history category of VI, Montagne's advisory guidelines range was determined to be 360 months to life imprisonment; however, pursuant to U.S.S.G. § 5G1.1(c)(2), his guidelines imprisonment range was life. (Id., ¶ 148).
Montagne appeared for sentencing on February 18, 2020. (ECF Nos. 45, 57). He again expressed satisfaction with the counsel, representation, and advice received from Mr. Pierce. (ECF No. 57, p. 3). He acknowledged reading the PSR and discussing it with his counsel. (Id., pp. 34). Noting there were no outstanding objections to the PSR that would impact the guidelines calculation, the Court adopted the PSR without any changes. (Id., p. 4).
Reviewing the guidelines calculation in the PSR, the Court determined that Montagne's adjusted offense level for Count Three (involving victim “John Doe 1”) was level 42 (ECF No. 57, pp. 5-6), and the adjusted offense level for Montagne's relevant conduct (involving victim “John Doe 2”) was also level 42 (Id., p. 6). Noting that each count equated to one unit, for a total of two units, the Court acknowledged that two levels must be added to the highest offense level, resulting in a level 44. (Id., pp. 6-7). Montagne's acceptance of responsibility reduced the total offense level to 41. (Id., p. 7). The Court noted that Montagne was classified, pursuant to U.S.S.G. § 4B1.5(a), as a repeat and dangerous sex offender against minors, but that this classification did not change Montagne's total offense level, which remained at 41. (Id.). The Court then found that a total offense level of 41, together with a category VI criminal history, resulted in an advisory guidelines range of 360 months to life imprisonment; but, since 18 U.S.C. § 3559(e) applied and called for life imprisonment, the guidelines range then becomes life. (Id., p. 8). The Court then generally noted the sentencing factors set forth in 18 U.S.C. § 3553(a), and that the Court had received, read, and considered a letter of support from Montagne's mother, as well as a Victim Impact Statement on behalf of the mother of the minor victims. (Id., pp. 8-9).
Regarding its position on sentencing, the Government simply stated its understanding of the implications of Montagne pleading guilty to an offense that statutorily required a life sentence, and so relied on that. (ECF No. 57, p. 9). Mr. Pierce likewise acknowledged that “we don't have any choice or any control about this,” and “Mr. Montagne understands that, and once he pled, he knew he was going to be facing a mandatory life sentence.” (Id.). Montagne chose not to exercise his right to allocution. (Id., p. 10).
The Court commented that it could go into significant detail about the 18 U.S.C. § 3553(a) sentencing factors, but because of the statutory penalty established for the offense, “I really don't think that is necessary, since the sentence has already been determined by the offense of conviction.” (ECF No. 57, p. 11). A sentence of life imprisonment was imposed on Montagne, to be followed (should Montagne ever be released from prison) by supervised release for five years, payment of $1,295.59 in restitution, and a special assessment of $100.00. (Id., pp. 11-14). Judgment was entered by the Court on February 19, 2020. (ECF No. 47).
On direct appeal, Montagne argued that his prior Texas convictions were not qualifying offenses under 18 U.S.C. § 3559(e). (ECF No. 59-1, p. 4). He focused on one federal sex offense - 18 U.S.C. § 2241 - and he argued that his Texas conviction did not fit § 2241's requirements because § 2241 only applies when the minor victim is younger than 12 years old, the Texas statute applies to victims who are younger than 17 years old, and that his victims were 15 years old. The Government responded by pointing out that another federal sex offense - 18 U.S.C. § 2422(b) -had no age requirement. The Eighth Circuit Court of Appeals concluded that it need not determine whether § 2241 or § 2422(b), or any other federal sex offense, is relevant to the case, because even if the district court committed an error, Montagne had invited it. (Id.). Montagne had agreed multiple times during the district court proceedings that he was subject to mandatory life imprisonment, and he did not object to § 3559(e)'s application at any point. (Id., p. 5). Upon such record, the Eighth Circuit found that Montagne had waived his argument that § 3559(e)'s mandatory life imprisonment did not apply to him. Montagne's conviction and sentence were affirmed on May 12, 2021, and the Mandate issued on July 7, 2021. (ECF Nos. 59, 59-1, 59-2).
Montagne filed a Petition for Writ of Certiorari to the United States Supreme Court on November 24, 2021. (ECF No. 60). The Petition was denied by the Supreme Court on January 10, 2022. (ECF No. 61).
Montagne filed his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed on January 6, 2023. (ECF No. 62). The motion asserts four grounds for relief, which can be summarized as follows: (1) ineffective assistance of counsel in failing to research and discover that Montagne's prior convictions did not categorically match the generic federal sex offenses to trigger a mandatory life sentence under 18 U.S.C. § 3559(e); (2) ineffective assistance of counsel by acting as an adversary and not an advocate when he guided and advised Montagne to enter an open plea of guilty to an offense that required a mandatory life sentence, when he should have known that the elements necessary to trigger the mandatory life sentence were absent; (3) ineffective assistance of counsel in failing to challenge the improper application of 18 U.S.C. § 3583; and (4) ineffective assistance of counsel in advising Montagne that if he went to trial he would receive nine life sentences, when he should have known that Montagne's prior convictions did not qualify to trigger the 18 U.S.C. § 3559(e) enhancement. (Id., pp. 4-10). Montagne filed a Memorandum Brief in support of his motion on March 7, 2023. (ECF No. 68). The United States' Response in opposition to the motion was filed on June 29, 2023. (ECF No. 73). Montagne filed a reply on October 3, 2023. (ECF No. 76).
II. DISCUSSION
“A prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). A thorough review of Montagne's motion and the files and records of this case conclusively shows that Montagne is not entitled to federal habeas relief, and the undersigned recommends the dismissal of Montagne's § 2255 motion with prejudice.
A. Legal Standard for Ineffective Assistance of Counsel Claims
To prove a claim of ineffective assistance of counsel, a criminal defendant must demonstrate both that counsel's performance was deficient, and that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the deficient performance prong of the Strickland test, one must show that counsel's representation fell below the “range of competence demanded of attorneys in criminal cases.” Id. at 688. Review of counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. Moreover, “[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S. at 690). Courts also “do not use hindsight to question counsel's performance,” but instead must analyze it according to counsel's situation at the time of the allegedly incompetent act or omission. Kenley v. Armontrout, 937 F.2d 1298, 1303 (8th Cir. 1991). If one fails to establish deficient performance by counsel, the court need proceed no further in its analysis of an ineffective assistance of counsel claim. United States v. Walker, 324 F.3d 1032, 1040 (8th Cir. 2003).
To establish the prejudice prong of the Strickland test, one must demonstrate “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The United States Supreme Court has clarified that the proper prejudice analysis is whether “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Strickland, 466 U.S. at 687).
B. Effect of a Guilty Plea
Montagne pleaded guilty to the offense of conviction. When a guilty plea is entered by the movant, the focus of a collateral attack must remain limited to the nature of counsel's advice and the voluntariness of the guilty plea. Bass v. United States, 739 F.2d 405, 406 (8th Cir. 1984), citing Tollett v. Henderson, 411 U.S. 258, 266 (1973). As the Court in Tollett explained:
“. . . a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann .” Id. at 267 (emphasis added).
McMann v. Richardson, 397 U.S. 759, 771 (1970) (If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not “within the range of competence demanded of attorneys in criminal cases.”)
The rationale and ruling of Tollett, while a decision concerning a state prisoner's habeas claims, has been adopted by the Eighth Circuit for application to motions made by federal prisoners under 28 U.S.C. § 2255. Bass, 739 F.2d at 406.
The standard for determining the validity of a guilty plea remains whether it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970), citing Boykin v. Alabama, 395 U.S. 238, 242 (1969), Machibroda v. United States, 368 U.S. 487, 493 (1962), and Kercheval v. United States, 274 U.S. 220, 223 (1927). “While a guilty plea taken in open court is not invulnerable to collateral attack in a post conviction proceeding, the defendant's representations during the plea-taking carry a strong presumption of verity and pose a ‘formidable barrier in any subsequent collateral proceedings.'” Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (quoting Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985)). A defendant has a heavy burden to overcome those admissions and show that the guilty plea was involuntary. See Blackledge v. Allison, 431 U.S. 63, 72-74 (1977).
C. Grounds One and Two
Failure to Challenge 18 U.S.C. § 3559(e) Sentencing Enhancement
Montagne's first two grounds for habeas relief concern his claims that defense counsel failed to discover and argue that his prior Texas sex offense convictions did not categorically match the generic federal offenses to trigger a mandatory life sentence under 18 U.S.C. § 3559(e). (ECF No. 62, p. 4). He also asserts that his counsel “acted as an adversary and not advocate for his client,” because he “advised his client to accept an open plea to a count in which his conduct did not match the elements to trigger a Mandatory Life Sentence,” and that no professionally competent defense attorney would “fail to advise his client that the elements of a Mandatory enhancement did not apply towards his client.” (Id., p. 5). This, Montage contends, rendered his choice to plead guilty to the offense of conviction unknowing and involuntary. (Id.).
Montagne was represented by an experienced Assistant Federal Public Defender, James B. Pierce. (ECF No. 6). Pierce requested discovery in open court (ECF No. 14), and he later filed a motion to reconsider Montagne's detention (ECF No. 16). Following a detention hearing held on August 19, 2019, the Court continued to detain Montagne pending his trial. (ECF Nos. 25, 26).
Montagne appeared with his appointed counsel on October 10, 2019, for a change of plea hearing before the Hon. P. K. Holmes, III, United States District Judge. (ECF Nos. 32, 56). Montagne was sworn on oath, and the Court asked about his age (31) and level of education (some college); whether he was under the influence of alcohol or drugs (he was not); whether he understood what was happening in the proceeding (he did); and, whether he had reviewed the Indictment and the charges with his lawyer (he had). (ECF No. 56, pp. 3-4). Montagne informed the Court that he was fully satisfied with the counsel, representation, and advice he had received from his lawyer, Mr. Pierce. (Id., p. 4).
The Court reviewed the eight-count Indictment with Montagne, including the special allegation that at the time Montagne committed the charged offenses he had been previously convicted in September 2013 in Montgomery County, Texas, of violating Texas Penal Code 22.011(a)(2)(B), and in February 2014 in Harris County, Texas, of violating Texas Penal Code 22.011 and 22.01, and that on the basis of those prior convictions, and pursuant to 18 U.S.C. § 3559(e), conviction on any of the charges in Count One through Count Six of the Indictment will result in a mandatory life sentence. (ECF No. 56, pp. 4-5). Montagne confirmed that he wanted to plead guilty to Count Three of the Indictment and the special assessment, but he wished to persist in his not guilty plea to the remaining counts of the Indictment. (Id., p. 6). Noting that no plea agreement had been presented to the Court, Montagne was advised that this would be an “open plea” to Count Three, without any promise from the Government, and that the Government could still try him on the remaining counts of the Indictment and any statements or admissions he made or adopted in the open plea hearing could be admitted in evidence against him in the trial of the remaining counts. Montagne stated his understanding. (Id., pp. 6-7). He told the Court that no promises or assurances of any kind had been made to get him to plead guilty to Count Three without the benefit of a plea agreement, and that nobody was forcing him in any way to plead guilty to Count Three. (Id., p. 7).
The Court discussed the consequences of a guilty plea to Count Three of the Indictment and the special allegation, including a mandatory life sentence because of Montagne's prior convictions. Again, Montagne stated his understanding. (ECF No. 56, pp. 7-8). The sentencing process was explained to Montagne, including reference to the advisory Sentencing Guidelines, the sentencing factors in 18 U.S.C. § 3553(a), consideration of relevant conduct, the preparation of a Pre-Sentence Investigation Report, and the Court's authority to depart or vary from the sentence recommended under the Guidelines. Montagne expressed his understanding that the sentence the Court imposed could be different from any estimate his attorney had given him. (Id., pp. 9-10). Montagne's Constitutional rights were explained to him, and he was informed that if he entered a plea of guilty to Count Three of the Indictment, he would be giving up those rights, except for the right to be represented by counsel. Montagne said he understood. (Id., pp. 10-11). He also confirmed that his counsel had explained all these rights and the consequences of a guilty plea to him. (Id., pp. 11-12).
Next, the Court went over the essential elements of the offense in Count Three of the Indictment that the Government would have to prove at trial. (ECF No. 56, p. 12). Montagne informed the Court that he and Mr. Pierce had consulted before the change of plea hearing about a written stipulation that Montagne had signed, and that the written stipulation set forth the factual basis to support his guilty plea to Count Three of the Indictment, as well as the special allegation regarding his prior Texas convictions. (Id., pp. 12-13). That written document, entitled Defendant's Intention to Plea[d] Gui[l]ty to Count Three, was received by the Court as Court Exhibit 1. (Id., p. 14; ECF No. 32-1). Mr. Pierce recited the factual basis for Count Three of the Indictment as set forth in the written statement, including that Montagne stipulated and agreed that he had been previously convicted of a sexual offense in which the victim was a minor child on or about September 26, 2012, in Montgomery County, Texas, and on or about February 7, 2014, in Harris County, Texas. (Id., pp. 15-18). Montagne confirmed his signature on the written statement, and he agreed that if the case were to go to trial the Government could prove the factual basis for Count Three as set forth in the written statement (and as recited by Mr. Pierce). (Id., p. 19). Montagne then pleaded guilty to Count Three of the Indictment, and he admitted the prior Texas state convictions of the special allegation. (Id., p. 20). The Court accepted Montagne's guilty plea to Count Three of the Indictment and his admission to the special allegation of the Indictment. (Id., p. 22). Upon doing so, the Court announced that the remaining counts of the Indictment would be reset for trial, and that after those remaining counts had been disposed of, then a presentence investigation would be ordered. (Id., pp. 22-23). Later the same day, the Government moved to dismiss the remaining counts of the Indictment, which motion was granted by the Court on October 17, 2019. (ECF Nos. 35, 36).
The record thus undermines Montagne's claim that his guilty plea to Count Three of the Indictment was unknowing and involuntary. The written statement - Defendant's Intention to Plea[d] Gui[l]ty to Count Three - set forth the factual basis in support of Montagne's guilty plea to Count Three; that Montagne further stipulated and agreed he had been previously convicted of a sexual offense in which the victim was a minor child on or about September 26, 2013, in Montgomery County, Texas, and on or about February 7, 2014, in Harris County, Texas; and Montagne acknowledged that the sentencing enhancement in 18 U.S.C. § 3559(e) applied to Count Three, and therefore, Montagne knew that a life sentence would be imposed. Montagne represented that he had read the written statement, had discussed it with his counsel, and that he understood it. Similar inquiries and assurances were made and given during his change of plea hearing.
Montagne now claims in conclusory fashion that defense counsel failed to discover and argue that his prior Texas convictions did not categorically match a generic federal sex offense to trigger a mandatory life sentence under 18 U.S.C. § 3559(e), thus rendering his guilty plea unknowing and involuntary. He offers no explanation or analysis, however, as to why his prior Texas convictions, both felony sex offenses involving a minor victim, do not satisfy 18 U.S.C. § 3559(e). Nor could he.
18 U.S.C. § 3559(e)(1) provides for mandatory life imprisonment for repeated sex offenses against children, and it states:
In general. A person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex offense in which a minor is the victim, unless the sentence of death is imposed.
18 U.S.C. § 3559(e)(2) defines the terms “Federal sex offense,” “State sex offense,” “prior sex conviction,” and “minor.” Montagne's offense of conviction in this case, i.e., Production of Child Pornography, in violation of 18 U.S.C. §§ 2251(a) and (e), clearly falls within the statutory definition of a “Federal sex offense.” 18 U.S.C. § 3559(e)(2)(A).
The term “State sex offense” is defined as “an offense under State law that is punishable by more than one year in prison and consists of conduct that would be a Federal sex offense ...” 18 U.S.C. § 3559(e)(2)(B). A “prior sex conviction” is one for which the sentence was imposed before the conduct occurred constituting the subsequent Federal sex offense, and which was for a Federal sex offense of a State sex offense. 18 U.S.C. § 3559(e)(2)(C). A “minor” means an individual who has not attained the age of 17 years. 18 U.S.C. § 3559(e)(2)(D).
The last two terms just mentioned are satisfied in the present case. The sentences imposed in Montagne's prior Texas sex offense convictions were imposed before the conduct occurred constituting the instant offense of conviction. On February 7, 2014, Montagne was sentenced in two cases before the 228th District Court in Houston, Texas: in Case No. 13573601010, he was sentenced to five years imprisonment for Sexual Assault of Child 14-17; and in Case No. 138892401010, he was sentenced to five years imprisonment for Sexual Assault of Child. (ECF No. 43, ¶¶ 98a, 100). Several months earlier, on September 26, 2013, Montagne appeared before the 9th Montgomery County District Court in Conroe, Texas, in Case No. 138892401010-3, and he was sentenced to five years imprisonment for Sexual Assault of Child 14-17. (Id., ¶ 103). Montagne's conduct constituting the instant offense occurred in 2019, well after the Texas sentences were imposed. The instant offense and the prior Texas sex offense convictions also all involved victims who had not attained age 17, so they all involved a “minor.”
The crux of the issue, then, is whether Montagne has a prior “State sex offense,” as that term is defined in 18 U.S.C. § 3559(e)(2)(B). More specifically, the question is whether Montagne's prior Texas sex offense convictions consisted of conduct “that would be a Federal sex offense.”
As noted above, Montagne argued on direct appeal that he had not been convicted of a qualifying prior child sex offense to support the life sentence imposed pursuant to 18 U.S.C. § 3559(e). (ECF No. 59-1, p. 2). He chose one Federal sex offense-18 U.S.C. § 2241 (Aggravated Sexual Abuse)-and argued that his Texas convictions did not fit § 2241's requirements because § 2241 only applies when the victim is younger than 12 years old. He then asserted that the Texas statute applies to victims who are younger than 17 years old, and that his victims were 15 years old. (Id., p. 4). The Government countered Montagne's argument on appeal by pointing out that 18 U.S.C. § 2242 had no such age requirement. (Id.). The Eighth Circuit held that it need not determine whether § 2241 or § 2422-or any other applicable Federal sex offense-is relevant to the case, because assuming the District Court committed an error, Montagne had invited the error. (Id.). Montagne now clothes this same argument in the garments of ineffective assistance of counsel, contending that his counsel's ineffective assistance invited the error. We must, therefore, make the determination the Eight Circuit declined to make because of Montagne's invited error.
Again, nothing in Montagne's § 2255 Motion or supporting brief explains why his prior Texas sex offense convictions do not categorically match up with a “Federal sex offense.” Instead, all Montagne offers is his conclusion that, “[h]ad Counsel researched § 3559(e), he would have discovered that based upon Mathis, Descamps, and other Supreme Court Rulings that the Petitioner's Prior State Convictions did not act as qualifying priors under § 3559(e).” (ECF No. 68, pp. 1-2). Mathis and Descamps are cases involving the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e), not the sentencing enhancement for repeat sex offenders against children provided for in 18 U.S.C. § 3559(e), so these cases can only shed light on the nature of “categorical analysis” in the present case. Montagne provides no substantive analysis to support his conclusion, nor citation to any authority holding that a conviction for sexual assault of a child 14-17 under Texas law does not constitute a “prior sex offense” for purposes of sentencing enhancement pursuant to 18 U.S.C. § 3559(e). Vague and conclusory allegations are insufficient to state a ground for relief under 28 U.S.C. § 2255. Hollis v. United States, 796 F.2d 1043, 1046 (8th Cir. 1986); Smith v. United States, 677 F.2d 39, 41 (8th Cir. 1982) (conclusory allegations, unsupported by any specifics, are subject to summary dismissal); Bryson v. United States, 268 F.3d 560, 562 (8th Cir. 2001) (brief, conclusory allegations that failed to cite to the record are insufficient to support claims of ineffective assistance of counsel). Even pro se litigants must state specific facts in support of their claims regarding counsel's allegedly deficient performance. Saunders v. United States, 236 F.3d 950, 952-53 (8th Cir. 2001). Montagne does not, and for that reason alone his first two grounds for federal habeas relief fail and are subject to summary dismissal.
Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).
Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).
Even so, a categorical analysis of the elements of a generic “Federal sex offense” and Texas Penal Code § 22.011(a)(2)(B) (the statute involved in Montagne's prior Texas sex offense convictions and identified in the special allegation) results in the conclusion that the § 3559(e) enhancement was properly applied to Montagne.
In Mathis, the Court noted that in listing the crimes which fell within the ACCA's definition of a “violent felony,” it had held that Congress referred only to their usual or generic versions-not to all variants of the offenses. 570 U.S. at 503. Thus, in Mathis, burglary was the relevant crime for purposes of comparison, and the Court articulated that, “[t]o determine whether a prior conviction is for generic burglary (or other listed crime) courts apply what is known as the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case.” Id. at 503-504. “A crime counts if its elements are the same as, or narrower than, those of the generic offense.” Id. at 504 (emphasis in original).
Here, Montagne stipulated and agreed that he had previously been convicted of a sexual offense in which the victim was a minor on or about September 26, 2012, in Montgomery County, Texas, namely Sexual Assault - Child, in violation of Texas Penal Code § 22.011(a)(2)(B); and that he had been convicted on or about February 7, 2014, in two other cases in Harris County, Texas, of Sexual Assault - Child Under 17, in violation of Texas Penal Code § 22.011. (ECF No. 32-1, p. 3, ¶ 6). Thus, sexual assault of a child is the relevant crime for purposes of comparison in the instant case.
The written stipulation contained in Defendant's Intention to Plea[d] Gui[l]ty states the date of the Montgomery County, Texas conviction as September 26, 2012 (ECF No. 32-1, p. 3, ¶ 6); however, the final PSR reports that this conviction occurred on September 26, 2013 (ECF No. 43, p. 18, ¶ 103).
In pertinent part, Texas Penal Code § 22.011(a)(2) provides that a person commits an offense if:
Regardless of whether the person knows the age of the child at the
time of the offense, the person intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor; ...
Texas Penal Code § 22.011(c)(1) defines a “child” as “a person younger than 17 years of age.”
“The term ‘Federal sex offense' means an offense under section 1591 (relating to sex trafficking of children), 2241 (relating to aggravated sexual abuse), 2242 (relating to sexual abuse), 2244(a)(1) (relating to abusive sexual contact), 2245 (relating to sexual abuse resulting in death), 2251 (relating to sexual exploitation of children), 2251A (relating to selling or buying of children), 2422(b) (relating to coercion and enticement of a minor into prostitution), or 2423(a) (relating to transportation of minors).” 18 U.S.C. § 3559(e)(2)(A). The statute defines a “minor” as “an individual who has not attained the age of 17 years.” 18 U.S.C. § 3559(e)(2)(D).
Montagne argued on appeal that his prior Texas convictions should be compared to 18 U.S.C. § 2241, and that because § 2241 only applies when the victim is younger than 12 years old, its elements are narrower than the Texas statute which applies to victims who are younger than 17 years old. Thus, he asserted, his prior Texas sex offense convictions could not serve as qualifying convictions for purposes of sentencing enhancement under § 3559(e). That argument ignores that § 2241, relating to aggravated sexual abuse, applies not only to children below the age of 12, but also to anyone who knowingly engages in a sexual act, whether by force, threat, or other means, with another person who has attained the age of 12 but has not attained age 16 years (and who is at least four years younger than the person engaging in the act). 18 U.S.C. § 2241(c). The argument also ignores that § 3559(e)(2)(A) lists numerous offenses which constitute a “Federal sex offense,” including § 2242 relating to sexual abuse. Considering that Montagne's prior Texas convictions are for sexual assault of a child aged 14-17, the most analogous comparator “Federal sex offense” among the listed offenses in § 3559(e), then, is § 2242 relating to sexual abuse, and not § 2241 relating to the aggravated sexual abuse of a child.
18 U.S.C. § 2242 provides that sexual abuse has been committed by one who knowingly:
(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping);
(2) engages in a sexual act with another person if that other person is-
(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; or
(3) engages in a sexual act with another person without that person's consent, to include doing so through coercion.
The elements of Texas Penal Code § 22.011(a)(2) match up with the elements of the comparable generic Federal sex offense in 18 U.S.C. § 2242. Both statutes require the person committing the offense to act knowingly, and both require the person to engage in a sexual act with another person. Texas Penal Code § 22.011(c)(1) defines a child as someone younger than 17 years of age; and, while 18 U.S.C. § 2242 does not have an age requirement, 18 U.S.C. § 3559(e)(2)(D) similarly defines a minor to be someone who has not attained the age of 17 years. Categorical analysis results in the conclusion that the elements of Texas Penal Code § 22.011 sufficiently match the elements of a generic Federal sex offense, thus Montagne's prior convictions in Texas for sex offenses against minors were valid predicate offenses for sentencing enhancement under 18 U.S.C. § 3559(e). Consequently, any argument by defense counsel that Montagne's prior convictions in Texas for sex offenses against minors did not trigger the mandatory life sentence called for in § 3559(e) would have lacked merit, and the failure to raise a meritless argument cannot support a claim of ineffective assistance of counsel. Larson v. United States, 905 F.2d 218, 219 (8th Cir. 1990); Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994); Haney v. United States, 962 F.3d 370, 374 (8th Cir. 2020) (where the sentencing argument had no merit, counsel was not ineffective in declining to advance it).
Accordingly, Montagne's claims regarding ineffective assistance of counsel for failing to challenge his prior Texas sex offense convictions as qualifying prior convictions for sentencing enhancement under § 3559(e), his first two grounds for federal habeas relief, have no merit and should be dismissed.
D. Ground Three
Failure to Challenge Imposition of Supervised Release
In Montagne's third ground for habeas relief, he faults his counsel for not objecting to “the improper application of 18 U.S.C. § 3583 causing an illegal sentence.” (ECF No. 62, p. 7; ECF No. 68). He contends that supervised release is a “part of” the sentence of imprisonment, not “in addition to” the term of imprisonment. He argues the statute he violated, 18 U.S.C. § 2251(e), contains no language granting the authority to add a sentence under 18 U.S.C. § 3583 “in addition to” a term of imprisonment, and likewise, that the sentencing enhancement statute, 18 U.S.C. § 3559(e), contains no such authorization. Montagne misapprehends the law, and his counsel had no basis to challenge the imposition of a term of supervised release in addition to the sentence of life imprisonment.
Montagne states that “[n]owhere in the text of [18 U.S.C.] § 3583 does it say ‘in addition to the sentence or punishment imposed.'” (ECF No. 68, p. 5). He focuses on the following language:
In general. The court, in imposing a sentence to a term of imprisonment for a felony or misdemeanor, may include as a part of
the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment18 U.S.C. § 3583(a). He then argues that “part of” means “something less than the whole,” and that “something less than the whole of the sentence of imprisonment must be designated as the ‘part of that sentence' to be served on supervised release.” (Id., pp. 5-6). He cites no legal authority for this proposition, but he suggests that “language and grammar” dictates it. (Id., p. 7; ECF No. 76, p. 3).
Montagne further states that 21 U.S.C. § 841 “is the only statute where Congress chose to make supervised release as an additional punishment to a crime”; that 18 U.S.C. § 2551 (his offense of conviction) “contains zero language to include an additional sentence of supervised release”; and that 18 U.S.C. § 3551 (relating to authorized sentences) does not contain any language to make supervised release an additional sentence. (ECF No. 68, p. 7).
Although Montagne is correct that § 2251(e) does not mention supervised release, it is addressed elsewhere in the criminal code. Statutory authority for the Court to impose a term of supervised release as a part of Montagne's sentence begins with § 3583(a), which provides that when imposing a sentence to a term of imprisonment a court may include as part of a sentence a term of supervised release after imprisonment, except that “the court shall include as a part of the sentence a requirement that the defendant be placed on a term of supervised release if such a term is required by statute ...” 18 U.S.C. § 3583(a) (emphasis added). The general rule for the length of any term of supervised release for various classes of felonies and misdemeanors is set out in § 3583(b); but § 3583(k) provides an exception to that general rule, and it provides that the authorized term of supervised release for certain enumerated offenses is “any term of years not less than 5, or life.” 18 U.S.C. § 3583(k). One of those enumerated offenses is 18 U.S.C. § 2251, which is Montagne's offense of conviction. Consequently, § 3582(k) authorized the Court's imposition of supervised release in Montagne's case to a term of not less than five years.
Montagne's argument, based not on legal citation but on “the plain, simple, reasonable, logical, normal English and American grammar” and his rewriting of § 3583(a) (ECF No. 76, p. 3), fares no better. He urges that supervised release must be considered as “a part of the sentence of imprisonment,” meaning something less than the entire term of imprisonment, but he clearly conflates “a part of the sentence,” the language used in § 3583(a), with “a part of the sentence of imprisonment.” A defendant's “sentence” may include a term of imprisonment, but “a sentence” may also include other aspects of punishment provided for by statute, such as a term of probation, a fine, or an order of forfeiture and/or restitution. 18 U.S.C. § 3551(b). Special assessments may also be imposed as part of a defendant's sentence. 18 U.S.C. §§ 3013 and 3014. Thus, the plain meaning of “a sentence” is broader in scope than “a sentence of imprisonment.”
Montagne's position on the imposition of supervised release lacks merit, and his counsel was not constitutionally deficient in failing to make the argument at sentencing. See Haney, 962 F.3d at 374 (where the sentencing argument had no merit, counsel was not ineffective in declining to advance it).
While the imposition of a term of imprisonment for life may make an additional term of supervised release seem superfluous, as it clearly does to Montagne, nonetheless statutory authority permits it. There is nothing about that circumstance that renders Montagne's sentence illegal, and Ground Three of his § 2255 Motion should be dismissed.
E. Ground Four
Error in Advising Montagne to Plead Guilty
Montagne's fourth and final ground for habeas relief is his claim that defense counsel “utilized erroneous information when he advised his client to plead guilty” and “sold his client up [the] river.” (ECF No. 62, p. 9; ECF No. 68, p. 3). This claim also relates to Montagne's contention that his prior Texas sex offense convictions did not qualify to trigger sentencing enhancement under 18 U.S.C. § 3559(e), and for the same reasons discussed in Sub-Section C above, the claim fails.
Moreover, the record establishes that Montagne was informed of, and understood, the charges against him, the special allegation of the Indictment concerning his prior Texas sex offense convictions, and the possible consequences of a guilty plea-including a mandatory term of imprisonment for life. (ECF No. 56, pp. 4-8). He expressed satisfaction with his counsel's advice and representation. (Id., p. 4). He denied that any promises or reassurances were made to get him to plead guilty to Count Three and the special allegation of the Indictment, or that anyone was forcing him to plead guilty. (Id., p. 7). He acknowledged that the sentence the Court imposed could be different than any estimate his attorney had given him. (Id., pp. 9-10). He confirmed his understanding of, and his signature on, the written Defendant's Intention to Plea[d] Gui[l]ty to Count Three, which set forth a stipulation of facts supporting the guilty plea, and he admitted that the Government could prove those facts if the case were to go to trial. (Id., pp. 13-19; ECF No. 32-1). Only then did he plead guilty to Count Three of the Indictment and admit to the special allegation of the Indictment. (Id., p. 20). Upon such record, the Court found that Montagne entered a knowing and voluntary plea of guilty to Count Three of the Indictment and the special allegation concerning his prior Texas sex offense convictions, and that his guilty plea was supported by an independent basis in fact containing all the essential elements of the offense. (Id., p. 22). The undersigned agrees. Faced with insurmountable evidence of his involvement in the charged offenses, Montagne knowingly, intelligently, and voluntarily decided to plead guilty to one of the charged offenses and the special allegation regarding his prior sex offense convictions. That decision represented a voluntary and intelligent choice among the alternative courses of action open to him at the time. And Montagne benefitted from his decision, as the Government subsequently moved to dismiss the remaining charges against him. (ECF Nos. 35, 36).
Accordingly, Montagne entered a valid plea of guilty to Count Three of the Indictment and the special allegation, and Ground Four of his § 2255 Motion affords no basis for federal habeas relief.
F. No Evidentiary Hearing is Warranted
A petitioner is entitled to an evidentiary hearing on a habeas motion unless the motion and the files and records of the case conclusively show that he is entitled to no relief. United States v. Ledezma-Rodriguez, 423 F.3d 830, 835-36 (8th Cir. 2005) (citing 28 U.S.C. § 2255). No evidentiary hearing is required, “where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.” Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007); Anjulo-Lopez v. U.S., 541 F.3d 814, 817 (8th Cir. 2008). Those are the circumstances in this case. Resolution of Montagne's claims can be accomplished by reviewing the record and applicable law. A thorough review of Montagne's § 2255 motion, the files and records of this case, and applicable law shows that Montagne is not entitled to relief. The summary dismissal of Montagne's § 2255 Motion, without an evidentiary hearing, is recommended.
G. No Certificate of Appealability is Warranted
A Certificate of Appealability may issue under 28 U.S.C.§ 2253 only if the applicant has made a substantial showing of the denial of a constitutional right. A “substantial showing” is one demonstrating that reasonable jurists could debate whether the petition should have been resolved in a different manner or the issues presented deserved further proceedings even though the petitioner did not prevail on the merits in the court considering his case at present. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Montagne has not made a substantial showing of the denial of a constitutional right, and a Certificate of Appealability should be denied.
III. CONCLUSION
For the reasons and upon the authorities discussed above, it is recommended that Montagne's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 62) be DISMISSED with PREJUDICE.
It is further recommended that a request for a Certificate of Appealability be denied.
The parties have fourteen (14) days from receipt of this Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely written objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court.