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Dury v. United States

United States District Court, W.D. North Carolina, Asheville Division

May 23, 2014

MATTHEW JAMES DURY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Case No. 1:08-cr-00016-MR-1

MEMORANDUM OF DECISION AND ORDER

MARTIN REIDINGER, District Judge.

THIS MATTER is before the Court on consideration of Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255 [Doc. 1], and the following motions filed by Petitioner in this civil action:

1. Motion to Vacate Judgment and Commitment Order [Doc. 2];
2. Motions for Default Judgment [Docs. 3, 4 and 16];
3. Motion for the Court to Uphold the Law [Doc. 5];
4. Motion for a Court Order to Warden Paul Copenhaver to Comply with 28 C.F.R. § 540.12 [Doc. 8];[1]
5. Motion to Vacate Indictment, Judgment and Commitment Order for Lack of Subject Matter Jurisdiction and for a Default Judgment [Doc. 14];
6. Motion for Entry of Default [Doc. 15]; and
7. Motion for Order to Show Cause [Doc. 18].

I. BACKGROUND

On February 6, 2008, Petitioner was indicted by the Grand Jury for the Western District of North Carolina and charged with receiving child pornography, in violation of 18 U.S.C. §§ 2552(a)(2) and (b)(1) (Count One), and with possessing a computer hard drive which contained visual depictions of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4) and (b)(2) (Count Two). [Criminal Case No. 1:08-cr-00016-MR-1, Doc. 2: Indictment].

On April 24, 2008, Petitioner entered into a written plea agreement with the Government wherein the parties agreed Petitioner would plead guilty to Count One in exchange for the Government's agreement to dismiss Count Two at the appropriate time. [ Id., Doc. 11: Plea Agreement]. On April 28, 2008, Petitioner appeared with counsel for his Plea and Rule 11 hearing before U.S. Magistrate Dennis L. Howell and he was placed under oath. Judge Howell carefully explained the elements of Count One; the possible penalties; and the valuable constitutional rights that Petitioner was waiving by electing to plead guilty, including his right to a jury trial, to confront witnesses, and the right to put the Government to its burden of proving his guilt beyond a reasonable doubt. Petitioner averred that he understood all that the Court had just explained to him and that he was pleading guilty to Count One because he was in fact guilty of the conduct charged therein. Petitioner further acknowledged that he had reviewed any possible defenses to the charges with his attorney and that he was satisfied with the services of his attorney and that no one had threatened or coerced him into pleading guilty. In addition, the Government summarized the terms of the written plea agreement and Petitioner averred that he understood and agreed with those terms. After determining that the plea was knowingly, voluntarily and intelligently entered, the Court accepted Petitioner's plea of guilty to Count One. [ Id., Doc. 12: Acceptance and Entry of Guilty Plea].

On September 4, 2008, Petitioner appeared for his sentencing hearing and the Court sentenced Petitioner to a term of 204 months' imprisonment and a fifteen-year term of supervised release. [ Id., Doc. 18: Judgment in a Criminal Case].

Petitioner noted a timely appeal to the United States Court of Appeals for the Fourth Circuit. On appeal, Petitioner's counsel filed an Anders[2] brief concluding there were no meritorious issues for appeal, but suggesting that the trial court may have erred in its application of an enhancement under § 2G2.2(b)(5) of the U.S. Sentencing Guidelines Manual (USSG).[3] The Court rejected this argument but did find that Petitioner's sentence should be vacated after concluding the District Court's pronouncement of sentence was not accompanied by an expressed understanding of its discretion in fashioning a sentence. United States v. Dury , 336 F.Appx. 371, 372 (4th Cir. 2009) (per curiam) (citing United States v. Carter , 564 F.3d 325 (4th Cir. 2009)). On remand, the District Court followed the mandate of the Fourth Circuit and again imposed a sentence of 204 months' imprisonment and a fifteen-year term of supervised release. [Criminal Case No. 1:08-cr-00016, Doc. 30: Amended Judgment]. Petitioner did not file an appeal from this amended judgment.

Petitioner filed the present § 2255 motion by placing it in the prison mailing system on October 11, 2012. [Doc. 1]. Thereafter, Petitioner filed a multitude of other motions, asking the Court to vacate his criminal judgment, to enter default judgment against the Government, and ...


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