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47UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, Case No. 14-20346 

 Hon. Matthew F. Leitman 

v. 

JOSHUA TUCHOLSKI, 

 Defendant. 

_________________________________/ 

ORDER DENYING DEFENDANT’S MOTION TO 

VACATE SENTENCE (ECF #41) 

 On January 30, 2015, Defendant Joshua Tucholski (“Tucholski”) pleaded 

guilty to one count of distribution of child pornography in violation of 18 U.S.C. 

§ 2252A(a)(5)(B). The Court sentenced Tucholski to 132 months of incarceration. 

(See ECF #37.) Tucholski has now filed a motion to vacate his sentence under 18 

U.S.C. § 2255 (the “Motion to Vacate”). (See ECF #41) For the reasons stated 

below, the Motion to Vacate is DENIED. 

I 

 On August 27, 2014, a federal grand jury returned a three count indictment 

against Tucholski (the “Indictment”). (See ECF #12.) Count I of the Indictment 

charged Tucholski with distribution of child pornography in violation of 18 U.S.C. 

§ 2252A(a)(2). (See id. at 1-2, Pg. ID 32-33.) Count II charged Tucholski with 

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receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). (See id. at 2, 

Pg. ID 33.) Finally, Count III charged Tucholski with possession of child 

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). 

 Tucholski chose to plead guilty, and on January 30, 2015, he entered into a 

Rule 11 plea agreement with the Government (the “Plea Agreement”). (See ECF 

#24.) In the Plea Agreement, Tucholski agreed to plead guilty to Count I of the 

Indictment and the Government agreed to dismiss Counts II and III. (See id.) 

 Along with the Plea Agreement, Tucholski and the Government submitted 

sentencing guideline worksheets that were identical with one exception. The 

Government maintained that when the Court calculated Tucholski’s sentencing 

guidelines range, it should include a guideline enhancement for “[e]ngaging in a 

pattern of activity involving the sexual abuse or exploitation of a minor” (the 

“Enhancement”). (See id. at 3-4, Pg. ID 85-86.) The Government recommended 

that the Court set Tucholski’s sentencing guideline range, including the 

Enhancement, at 262-327 months.1

 (See id. at 4, Pg. ID 86.) On the other hand, 

Tucholski recommended that the Court exclude the Enhancement and adopt a 

 

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 The Government acknowledged that despite proposing that the Court set 

Tucholski’s sentencing guideline range at 262-327 months, the Court could not 

actually sentence Tucholski to more than 240 months of imprisonment, the 

statutory maximum penalty for Count I of the Indictment. (See Plea Agreement, 

ECF #24 at 4, Pg. ID 86.) 

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sentence guideline range of 151-188 months.2

 (See id.) The parties then agreed 

that “[t]he Court [would] resolve the parties’ disagreement of the applicable 

[g]uidelines range ... and [would] determine which [g]uidelines range applie[d].” 

(Id. at 5, Pg. ID 87.) Tucholski further agreed that if the Court sentenced him to a 

term of imprisonment that did not exceed the top of the guidelines range that the 

Court determined was proper, he would waive his right to appeal his sentence. (See 

id. at 8-9, Pg. ID 90-91.) 

 Prior to Tucholski’s sentencing, the Court entered a written order in which it 

resolved the parties’ dispute over the Enhancement in Tucholski’s favor. (See ECF 

#33.) In that Order, the Court held that it would not apply the Enhancement when 

it calculated Tucholski’s sentencing guideline range. (See id. at 7, Pg. ID 196). 

The Court ultimately agreed with Tucholski and set his sentencing guideline range 

at 151-188 months. 

 Tucholski appeared before the Court for sentencing on September 14, 2015. 

The Court sentenced Tucholski to 132 months imprisonment. (See Judgment, ECF 

#37 at 2, Pg. ID 222.) Tucholski did not object to the Court’s guideline calculation 

or any other aspect of his sentence. Importantly, this sentence was below the 

sentencing guideline range that Tucholski recommended in the Plea Agreement 

 

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 The parties agreed that their respective ranges could increase if Tucholski’s 

criminal history category was higher than the parties initially calculated or if, after 

pleading guilty, Tucholski committed certain other misconduct. (See Plea 

Agreement, ECF #24 at 4, Pg. ID 86.) 

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and that the Court ultimately adopted. Tucholski did not appeal either or his 

conviction or his sentence on any ground. 

III 

 On September 6, 2016, Tucholski filed the Motion to Vacate. (See ECF 

#41.) In the Motion to Vacate, Tucholski argues, among other things, that his 

sentencing guideline range was improperly calculated and included enhancements 

that wrongly increased his guidelines range. (See id. at 4, Pg. ID 312.) Tucholski 

does not raise an ineffective assistance of counsel argument. The Government 

responded to the Motion to Vacate on October 21, 2016. (See ECF #45.) 

Tucholski filed a reply brief on November 21, 2016. (See ECF #49.) 

 Tucholski seeks relief under 28 U.S.C. § 2255. “An application under 

§ 2255 is an extraordinary remedy and should not be considered a substitute for 

direct appeal.” Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998); see also 

Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (“Section 2255 is not 

a substitute for a direct appeal, and thus a defendant cannot use it to circumvent the 

direct appeal process”). Where, as here, a defendant “has failed to assert his claims 

on direct appeal and thus has procedurally defaulted, in order to raise them in a § 

2255 motion he also must show either that (1) he had good cause for his failure to 

raise such arguments and he would suffer prejudice if unable to proceed, or (2) he 

is actually innocent.” Regalado, 334 F.3d at 528. This “cause and prejudice 

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standard applies to a defendant who pleads guilty and first asserts a claim for relief 

in a collateral proceeding.” Id. 

 Tucholski did not file a direct appeal of his sentence. Thus, Tucholski can 

obtain relief on the claims raised in the Motion to Vacate only if he can show 

“cause and prejudice” for his failure raise these claims on direct appeal. See, e.g., 

Akridge v. United States, 42 F.3d 1388, at *1 (6th Cir. Nov. 21, 1994) (Table) 

(applying “cause and prejudice” standard to defendant who waived right to appeal 

sentence in plea agreement and affirming denial of motion to vacate under Section 

2255).3 

 Tucholski has not shown the required “cause.” In his reply brief, Tucholski 

attempts to establish “cause” by arguing that he did not appeal his sentence 

because he was “scared of retaliation” from the Government. (See Reply Br. at 2, 

ECF #49 at 2, Pg. ID 405.) Tucholski insists that had he appealed his sentence, the 

Government would have “reindict[ed] him for more charges.” (Id. at 2-3, Pg. ID 

405-06.) But Tucholski has not provided the Court any authority for the 

proposition that his “fears” the Government would “reindict” him or would have 

otherwise attempted to increase his sentence satisfy the “cause” requirement under 

 

3 See also Santos v. United States, 296 F.Supp.2d 430, 433 (E.D.N.Y. 2003) 

(holding that defendant who waived his right to appeal his conviction or sentence 

in his plea agreement, and thus could not and did not file a direct appeal, could 

only bring a “Section 2255 petition upon a showing of cause and prejudice ... or 

actual innocence”). 

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Section 2255. Nor has Tucholski presented anything other than idle speculation 

that the Government would have taken such action had he filed an appeal. Simply 

put, Tucholski has not provided the Court any basis under which it can conclude 

that he has satisfied his requirement to show “cause.” Tucholski is therefore not 

entitled to relief under Section 2255.4

 

IV 

Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that 

the Motion to Vacate (ECF #41) is DENIED. 

 s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: November 22, 2016 

 

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 The Court further notes that Tucholski may have additional problems clearing the 

“cause” hurdle. Some courts have held that where a defendant knowingly and 

voluntarily waives his right to file a direct appeal – as Tucholski did in the Plea 

Agreement – such a waiver forecloses a defendant from establishing “cause” under 

Section 2255. See, e.g., Owens v. United States, 2007 WL 1041121, at *6 (W.D. 

Mich. 2007) (“[W]here a criminal defendant’s failure to appeal is based upon his 

knowing and voluntary abandonment of the right to appeal, he cannot possibly 

show cause” under Section 2255”); United States v. Cooper, 2012 WL 12706, at 

*9 (E.D. Mich. 2012) (holding that defendant who waived right to appeal in plea 

agreement could not show “cause” under Section 2255 to excuse procedural 

default). The Court need not reach that question because, as described above, 

Tucholski has not otherwise established the required cause. 

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I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on November 22, 2016, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113

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