United States District Court, W.D. North Carolina, Charlotte Division
ANTHONY R. PORTER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
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.
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. (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).
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).
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
STANDARD OF REVIEW
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).
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).
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.
that Petitioner's § 2255 Motion to Vacate was timely
filed,  it does not warrant relief.
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.See generally Bousley v. United
States, 523 U.S. 614, 621 (1998); United States v.