United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. §
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE
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. §
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
reasons set forth below, the petition will be denied.
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.).
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).
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.
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).
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.
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).
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.
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.
October 29, 2015, Burdulis filed a timely motion to vacate,
set aside, or correct the sentence, pursuant to 28 U.S.C.
Analysis A. Standard of Review
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
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.”).
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 catch-all 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 ...