Tatar v. United States
Decision Date | 09 February 2016 |
Docket Number | Civ. No. 13-3317 (RBK) |
Parties | SERDAR TATAR, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
Court | United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey |
Petitioner, Serdar Tatar, seeks relief pro se under 28 U.S.C. § 2255 from his federal conviction and sentence. Mr. Tatar was convicted after a jury trial (along with his coconspirators Dritan Duka, Shain Duka, Eljvir Duka (collectively the "Duka brothers") and Mohamed Shnewer) of conspiracy to murder members of the United States military. He is currently serving a sentence of 396 months imprisonment. Mr. Tatar raises several ineffective assistance of counsel claims in his § 2255 motion; specifically: (1) failure to object to the jury charge when it reduced the burden of proof ("Claim I"); (2) failure to seek dismissal of Count 1 of the indictment (conspiracy to murder members of the United States military) ("Claim II"); (3) failure to object to a constructive amendment to the indictment ("Claim III"); (4) failure to allow him to testify and obstructing his right to present a defense ("Claim IV"); (5) failure of appellate counsel to raise Claims II and II on appeal ("Claim V"); and (6) failure of trial counsel to seek post-verdict to dismiss the remaining conspiracy offense in count one due to retroactive misjoinder and failure of appellate counsel to raise issue of retroactive misjoinder on appeal ("Claim VI"). Additionally, Mr. Tatar claims that sentencing enhancements found through judicial fact-finding were improperly used to increase his sentence ("Claim VII"). The government has filed an opposition that all of the claims should be denied on the merits. For the following reasons, the Court will deny relief on all of the claims Mr. Tatar raises in his amended § 2255 motion.
United States v. Duka, 671 F.3d 329, 333-35 (3d Cir. 2011).
Relevant to this Opinion, Mr. Tatar was charged with one count of conspiracy to murder members of the United States military in violation of 18 U.S.C. § 1117 ("Count 1") and one count of attempt to murder members of the United States military ("Count 2").1 Mr. Tatar (along with the Duka brothers and Shnewer) was found guilty of Count 1 of conspiracy to kill United States military personnel. However, Mr. Tatar (along with the Duka brothers and Shnewer) were found not guilty of Count 2 of attempting to kill United States military personnel. Mr. Tatar was sentenced to 396 months imprisonment (the Duka brothers and Shnewer received life sentences).The United States Court of Appeals for the Third Circuit affirmed the judgment of conviction as to Mr. Tatar. See Duka, 671 F.3d 329.
Mr. Tatar filed a pro se amended § 2255 motion raising the claims outlined in supra Part I. The government has filed a response in opposition and Mr. Tatar has filed a reply in support of his amended § 2255 motion.
A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if "the court finds ... [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). "In considering a motion to vacate a defendant's sentence, 'the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record.'" United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (citing R. Governing § 2255 Cases R. 4(b)). A District Court "is required to hold an evidentiary hearing ' unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'" Id. (quoting Forte, 865 F.2d at 62). The Third Circuit has stated that this standard creates a '"reasonably low threshold for habeas petitioners to meet.'" Id. (quoting United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001))). Accordingly, this Court abuses its discretion "if it fails to hold an...
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