USA v. Montagne

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
V. 	Criminal No. 3:19-cr-30005-PKH-MEF-1
Civil No. 3:23-cv-03005-PKH-MEF
LUCAS MONTAGNE 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
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, 2023.1 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.
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
1 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.
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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
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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
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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
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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., ¶
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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. 3-
4). 	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
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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).
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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. §
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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
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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).
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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 McMann2.” Id. at 267 (emphasis added).
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.
2 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.”)
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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
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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
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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
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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
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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
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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.
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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). 	Mathis3 and Descamps4 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.
Even so, a categorical analysis of the elements of a generic “Federal sex offense” and Texas
3 Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).
4 Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).
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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, 20125, 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.
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
5 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).
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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
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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
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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
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the sentence a requirement that the defendant be placed on a term of
supervised release after imprisonment …
18 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
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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
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[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
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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
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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.
DATED this 12th day of January 2024.
/s/	
Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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