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Porter v. United States

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

June 11, 2018

ANTHONY R. PORTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Petitioner's Postsentencing Rehabilitation Programming Mandates Inducement for Sentencing Reduction Pursuant to 18 U.S.C. §§ 3582, 3661, 3742, (Doc. No. 1), which the Clerk has docketed as a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.

         I. BACKGROUND

         Petitioner pled guilty in the underlying criminal case to: Count (1), conspiracy to defraud the United States; Count (2), conspiracy to commit money laundering; and Count (3), false statement on a tax return. See (3:08-cr-163, Doc. Nos. 1, 4, 6). The Court sentenced him to one month for Count (1) and 120 months for Count (2), consecutive, and 36 months for Count (3), concurrent, followed by three years of supervised release.[1] (3:08-cr-163, Doc. Nos. 18, 20). (Amended Judgment docketed July 7, 2010). The Judgment was amended on September 6, 2016, to add restitution in the amount of $58, 645, 806.32. (3:08-cr-163, Doc. No. 33).

         Petitioner filed the instant petition, entitled “Postsentencing Rehabilitation Programming Mandates Inducement for Sentencing Reduction Pursuant to 18 U.S.C. §§ 3582, 3661, 3742, ” on August 7, 2017. (Doc. No. 1). He argues, inter alia, that no mens rea was ever established in the alleged conspiracy; the same conduct would be legal today; the co-defendants have now been released from custody; Petitioner has no criminal history and he self-surrendered; the offense was not a planned conspiracy, but rather, was a “business strategy involving money laundering;” and he was awarded a reduction for substantial assistance. (Doc. No. 1 at 4). Further, he has demonstrated “staggering dedication” by completing over 2, 300 hours of rehabilitation programs and started four non-profit entities since he was sentenced. (Doc. No. 1 at 6). He argues that the Court should grant him immediate release, reduce his sentence, or “expunge[]” his supervised release in light of these factors. (Doc. No. 1 at 13).

         The Court ordered Petitioner on April 24, 2018, to inform the Court within 20 days if he objected to the recharacterization of the instant petition as a § 2255 Motion to Vacate. (Doc. No. 2). He was cautioned that the failure to respond would result in the petition's recharacterization as a § 2255 Motion to Vacate. (Id.). He has not responded.

         II. STANDARD OF REVIEW

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the argument presented by the Petitioner can be resolved based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         (1) § 2255

         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the 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).

         Liberally construing the pro se petition, Petitioner attacks his conviction and sentence by arguing, inter alia, that no mens rea was established, the same conduct would be legal today, and the offense was not a planned conspiracy, and his sentence is unreasonable.

         Assuming that Petitioner's § 2255 Motion to Vacate was timely filed, [2] it does not warrant relief.

         As a preliminary matter, Petitioner's challenges to his conviction and sentence are procedurally defaulted from § 2255 review because he failed to raise them on direct appeal.[3]See generally Bousley v. United States, 523 U.S. 614, 621 (1998); United States v. ...


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