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Tatar v. United States

United States District Court, Third Circuit

June 5, 2013

SERDAR TATAR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

SERDAR TATAR, #61287-066, FCI Gilmer, Glenville, West Virginia, Petitioner Pro Se,

ROBERT STEPHEN STIGALL, UNITED STATES ATTORNEY FOR DISTRICT OF NEW JERSEY, Camden, New Jersey.

OPINION

ROBERT B. KUGLER, District Judge.

Serdar Tatar, a federal prisoner who was convicted in this Court of conspiring to murder United States military personnel, see United States v. Tatar, Crim. No. 07-0459-RBK-5 judgment (D.N.J. Apr. 29, 2009), aff'd, United States v. Duka, 671 F.3d 329 (3d Cir. 2011), cert. denied, Tatar v. United States, 132 S.Ct. 2763 (June 11, 2012) (No. 11-1295), filed a "Motion for Extension of Time to File a Petition Pursuant to 28 USC § 2255 in Seeking to Vacate, Set-Aside or Correct Sentence." (Motion, ECF No. 1 at 2.) For the reasons expressed below, this Court will give Tatar an opportunity to elect to have this Court: (A) entertain his motion to extend the statute of limitations as labeled, or (B) recharacterize the motion as a motion to vacate the April 29, 2009, judgment, pursuant to 28 U.S.C. § 2255, and entertain this timely § 2255 motion which raises five grounds as his one all-inclusive § 2255 motion, or (C) withdraw the pending motion and file a timely motion, pursuant to 28 U.S.C. § 2255, - to vacate the April 29, 2009, sentence, which motion includes all available federal claims. This Court will explain these three options and give Tatar 20 days to notify the Clerk in writing which option he elects. If Tatar does not notify this Court in writing within 20 days, then this Court will entertain his motion as labeled, i.e., grant or deny the motion to extend the time to file a timely § 2255 motion.

I. BACKGROUND

After a two-and-a-half month jury trial concerning a plot to attack the United States Army Base at Fort Dix and other military bases, a jury convicted Tatar and his co-defendants of conspiring to murder United States military personnel in violation of 18 U.S.C. §§ 1114 and 1117. On April 29, 2009, this Court sentenced Tatar to 396 months in prison and supervised release for life. Tatar appealed, and on December 28, 2011, the Third Circuit affirmed his conviction and sentence. See United States v. Duka, 671 F.3d 329 (3d Cir. 2011). The Supreme Court denied certiorari on June 11, 2012. See Tatar v. United States, 132 S.Ct. 2763 (2012) (No. 11-1295).

Tatar handed the present motion for an extension of time to file a § 2255 motion to prison officials for mailing to the Clerk on May 22, 2013. (Motion, ECF No. 1 at 6.) The Clerk received it on May 28, 2013. In the motion, Tatar asks this Court to extend the time to file his § 2255 motion from June 11, 2013, until July 26, 2013. To support his motion, Tatar asserts:

In the instant matter Movant seek[s] this Hon. Court to consider and thereby grant his motion/request for extension of time to file Sect. 2255 motion where because petition for Writ of Certior[a]ri - from the Supreme Court to the Third Circuit Court of Appeals - was denied on June 11, 2012, causing that "due date" or limitations period proscribed under the Antiterrorism And Effective Death Penalty Act of 1996 (AEDPA, see also 28 USC § 2255(f)), requir[ing] motion to be filed no later than June 11th, 2013, one year from the date Cert. was denied. See SERDAR TATAR V. UNITED STATES , 132 S.Ct. 2763; 183 L.Ed.2d 616; 2012 U.S. LEXIS 4505.

And, given the extraordinary nature of pro se Movant's case, including the fact that conviction has come by way of jury trial, the case is inherently loaded with a great number of complexities; factual, legal, and the effort to organize and obtain pertinent discovery or affidavit[s] germane to underlying issues.

(Motion, ECF No. 1 at 3-4.)

Tatar further states that he intends to raise the following five grounds in his § 2255 motion:

(1) trial counsel was constitutionally ineffective in failing to object to jury charge or move for a mistrial where the instructions effectively reduced the government's burden of proof; (2) trial counsel was constitutionally ineffective in failing to seek a dismissal of Count One of the indictment or to compel the government to choose between the allegation of a conspiracy to murder or the attempt to murder; (3) trial counsel was constitutionally ineffective in failing to object to the constructive amendment of the indictment; (4) trial counsel was constitutionally ineffective in failing to allow Tatar to testify, or in obstructing his right to provide evidence in his defense; and (5) appellate counsel was constitutionally ineffective in failing to raise certain issues on direct appeal. (Motion, ECF No. 1 at 4-5.) Tatar also requests additional time beyond June 11, 2013, to add more grounds.

II. DISCUSSION

In United States v. Miller, 197 F.3d 644 (3d Cir. 1999), the Third Circuit instructed district courts on the procedure that must be followed when a federal inmate submits a post-judgment application ...


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