United States v. Burdulis

• Decision Date: 01 August 2016
• Docket Number: Criminal No. 10-40003-FDS
• Citation: 209 F.Supp.3d 415
• Parties: UNITED STATES of America v. Paul V. BURDULIS, Defendant.
• Court: U.S. District Court — District of Massachusetts

209 F.Supp.3d 415

UNITED STATES of America

v.Paul V. BURDULIS, Defendant.

Criminal No. 10-40003-FDS

United States District Court, D. Massachusetts.

Signed August 1, 2016

David H. Hennessy, U.S. Attorney's Office, Worcester, MA, for United States of America.

William W. Fick, Federal Public Defender Office, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

SAYLOR, United States District Judge

On April 5, 2012, a jury found petitioner Paul Burdulis guilty of possession of child pornography in violation of 18 U.S.C. § 2252(a). On June 28, 2012, the Court sentenced him to 108 months of incarceration, to be followed by a ten-year period of supervised release. He has now moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

In his motion, Burdulis contends (1) that his appellate counsel was ineffective in failing to challenge his sentence; (2) that his appellate counsel was ineffective in failing to challenge the procedural reasonableness of the term of supervised release; (3) that pre-trial counsel was ineffective in arguing a motion to suppress evidence; (4) that searches executed on his property were unreasonable in violation of the Fourth and Fourteenth Amendments; (5) that the admission of hearsay evidence violated his rights to due process and confrontation under the Fourteenth and Sixth Amendments; and (6) that the definition of "produce" in the jury instructions violated the separation of powers and the due process guarantee of fair notice. He is proceeding pro se .

For the reasons set forth below, the petition will be denied.

I. Background

In May 2009, Paul Burdulis approached a thirteen-year-old boy at a golf course. He handed him a note containing his name, an e-mail address, a phone number, and the words "call me!" (Gov't Reply Br. at 2). The boy reported the contact to the police. Over the next few days, Burdulis communicated by e-mail with someone he believed to be that boy, but who was in fact an undercover officer. (Id. ). During the course of those conversations, Burdulis suggested that they meet in person; suggested that they share a bubble bath; asked if the boy had photos of himself; offered to send him pornography; and sent a photograph of his own naked torso and penis. (Id. ).

On May 12, 2009, a detective obtained a warrant to search Burdulis's home based on that evidence. (Id. ). During the search, the police seized several electronic devices, including computers, and a thumb drive stamped with the words "Made in China." (Id. at 3-4). During a search of the thumb drive on May 19, 2009, an officer came across photographs that he believed to be child pornography. (Id. at 4). The thumb drive was ultimately found to contain at least two hours of child pornography videos. (Tr. 2: 170-71, 173).

On January 21, 2010, a grand jury returned an indictment against Burdulis charging him with one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Initially, Syrie Fried, an assistant federal public defender, was appointed as counsel for Burdulis. While she was serving as counsel, she filed a motion to suppress all evidence obtained during the search of his home, and any subsequent searches of the items seized, on the grounds that the warrants were overbroad and did not establish probable cause. Although the Court initially granted the motion in part and denied it in part, upon the government's motion for reconsideration, the Court amended its decision to deny the motion to suppress in its entirety. On April 28, 2011, William Fick, also an assistant federal public defender, entered an appearance for Burdulis. On June 22, 2011, attorney Fried moved to withdraw as counsel. On August 11, 2011, attorney Fick filed a motion for reconsideration of the denial of the motion to suppress; the Court heard argument on the motion, but ultimately denied it.

On March 20, 2012, the government filed a motion in limine requesting a ruling that the "Made in China" label on the thumb drive was admissible as evidence that the thumb drive travelled in interstate commerce. Attorney Fick filed an opposition, but the Court ruled in favor of the government. (Electronic Order, April 4, 2012).

At the conclusion of the trial, the Court instructed the jury, among other things, that an image was "produced" using materials that had been transported in interstate commerce if any of the materials "onto which the image was transferred or copied" had been transported in interstate commerce. (Docket No. 147 at 221). The jury returned a verdict of guilty on April 5, 2012. (Id. at 232).

The sentencing hearing took place on June 28, 2012. Burdulis had previously been convicted of possession of child pornography by a military court under U.C.M.J. Art. 134. In addition, police had found child pornography on his computer in 2008. He had not been convicted of that offense due to the officers' failure to obtain a warrant before searching his computer. The Court determined that the statutory minimum mandatory sentence and higher maximum sentence did not apply, as he had not been convicted under the relevant statutory provision. (Tr. of Disposition at 12). The Court also determined that the guideline enhancement for use of a computer should be applied, even though it applied to almost all offenders and did not distinguish between more and less serious offenses. (Id. at 17).

The Court sentenced Burdulis to 108 months of incarceration, to be followed by a ten-year period of supervised release. The sentence was above the guideline range, and was imposed in large part due to Burdulis's history of similar offenses and because he had interacted with an actual child in the present offense.

Burdulis appealed his conviction on the grounds that the search warrant was invalid for being overbroad and for not being supported by probable cause, and that the copying of the images onto the thumb drive was not sufficient to meet the jurisdictional element of interstate commerce. (Pet. Mot. to Vacate, Docket No. 181 at 2). On appeal, Burdulis was represented by a third lawyer, Judith Mizner. (Id. at 15). The Court of Appeals upheld the conviction. (Id. at 2). His petition for certiorari was denied. (Id. ).

On October 29, 2015, Burdulis filed a timely motion to vacate, set aside, or correct the sentence, pursuant to 28 U.S.C. § 2255.

II. Analysis

A. Standard of Review

Under 28 U.S.C. § 2255(a),

A prisoner in custody under sentence of a court established by Act of Congress 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) ; see also Ellis v. United States , 313 F.3d 636, 641 (1st Cir.2002) ("In essence ... section 2255 is a surrogate for the historic writ of habeas corpus.").

A petitioner can obtain post-conviction relief under § 2255"only when the petitioner has demonstrated that his sentence ‘(1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack.’ " Moreno – Morales v. United States , 334 F.3d 140, 148 (1st Cir.2003) (quoting David v. United States , 134 F.3d 470, 474 (1st Cir.1998) ). "The catchall fourth category includes only assignments of error that reveal ‘fundamental defect[s]’ which, if uncorrected, will ‘result[ ] in a complete miscarriage of justice,’ or irregularities that are ‘inconsistent with the rudimentary demands of fair procedure.’ " David , 134 F.3d at 474 (quoting Hill v. United States , 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ). A "petitioner bears the burden of establishing that [he] is entitled to relief under § 2255."

Troy v. United States , 946 F.Supp.2d 172, 177 (D.Mass.2012) (citing David , 134 F.3d at 474 ).

B. Whether Appellate Counsel Was Ineffective in Failing to Challenge the Sentence

Petitioner contends that his appellate counsel should have challenged the sentence of incarceration as being unreasonably long. He contends that there are five grounds on which the sentence was defective: (1) the Court impermissibly used his past criminal conviction twice in calculating his sentence; (2) the two-level enhancement under the sentencing guidelines for use of a computer, U.S.S.G. § 2G2.2(b)(6), should not have been applied; (3) his sentence was disproportionately long in comparison to the sentences of similarly-situated offenders; (4) the sentence was based on speculation about his likelihood to commit further crimes; and (5) the availability of a downward adjustment in the sentencing guideline range for acceptance of responsibility is actually a punishment for defendants who use their constitutional right to a trial by jury.

The standard for determining claims of ineffective assistance of counsel are set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , a petitioner must demonstrate (1) counsel's performance "fell below an objective standard of reasonableness" and (2) counsel's performance prejudiced the defense so that there is a "reasonable probability" that the outcome would have been different absent the deficient performance. Id . at 687–88, 694–95, 104 S.Ct. 2052. Reviewing courts are not required to address the two prongs in that order; if it is possible to dispose of a claim on the grounds that petitioner did not suffer prejudice, a court does not need to address the reasonability of counsel's performance. Id. at 697, 104 S.Ct. 2052.

Under Strickland , reasonable performance on the part of the attorney is presumed, and petitioner bears...