TATAR v. UNITED STATES OF AMERICA

Filing 51

OPINION. Signed by Judge Robert B. Kugler on 3/10/2017. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
SERDAR TATAR,
:
:
Petitioner,
:
Civ. No. 13-3317 (RBK)
:
v.
:
:
UNITED STATES OF AMERICA,
:
OPINION
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Petitioner, Serdar Tatar, is a federal prisoner proceeding pro se with an amended motion
to vacate, correct, or set aside his federal sentence pursuant to 28 U.S.C. § 2255. Previously, this
Court denied Mr. Tatar’s § 2255 motion in its entirety without the need for an evidentiary
hearing. Presently pending before this Court are two identical motions for reconsideration that
Mr. Tatar filed ten days apart from one another. The Clerk will be ordered to reopen this case so
that these two motions can be analyzed. For the following reasons, Mr. Tatar’s motions for
reconsideration will be denied.
II.

BACKGROUND

Mr. Tatar is one of five individuals1 who was arrested in in May, 2007. On direct appeal
of Mr. Tatar’s judgment of conviction, the United States Court of Appeals laid out the factual
underpinnings giving rise to the convictions of the five defendants as follows:
Shnewer, the Duka brothers, and Tatar are a group of young men
who lived in New Jersey and developed an interest in violent jihad,
particularly attacks against the United States military. Defendants,
who had known each other since high school, came to the FBI's
1

Dritan Duka, Shain Duka, Eljvir Duka and Mohamed Shnewer were the other four other coconspirators.

attention after it received a copy of a video that was brought to a
Circuit City store in Mt. Laurel, New Jersey, for copying. The
video dated from January 2006 and depicted the five defendants
and others at a firing range in the Pocono Mountains, shooting
weapons and shouting “Allah Akbar!” and “jihad in the States.”
Over the course of the next sixteen months, the FBI deployed two
cooperating witnesses, Mahmoud Omar and Besnik Bakalli, to
monitor defendants' activities. The evidence presented at trial
showed that, between January 2006 and May 2007, defendants
viewed and shared videos of violent jihadist activities, including
beheadings, around the world; they viewed and shared videos of
lectures advocating violent jihad against non-Muslims; they sought
to acquire numerous weapons, including automatic firearms and
rocket-propelled grenades; they returned to the Poconos, where
they again engaged in shooting practice; they discussed plans to
attack the United States military; they conducted research and
surveillance on various potential targets for such an attack in New
Jersey, Pennsylvania, and Delaware; and they procured a map of
the United States Army Base at Fort Dix to use in planning and
coordinating such an attack.
With respect to the individual defendants, the evidence
demonstrated the following:
Mohamad Shnewer is a naturalized American citizen who was
born in Jordan. He admired and sought to emulate the “nineteen
brothers,” i.e., the September 11 hijackers, Osama bin Laden, and
the leader of al Qaeda in Iraq, Abu Musab al-Zarqawi. Shnewer
openly discussed and planned attacks on military targets in New
Jersey, Pennsylvania, and Delaware. Along with Omar, the
government informant, he staked out the United States Army Base
at Fort Dix, McGuire Air Force Base, Lakehurst Naval Air Station,
and the United States Army Base at Fort Monmouth in New
Jersey; the United States Coast Guard Base in Philadelphia,
Pennsylvania; and Dover Air Force Base in Delaware. Shnewer
also considered attacking the federal government building at 6th
and Arch Streets in Philadelphia and drove by the building to
determine whether such an attack would be feasible. To
accomplish an attack on these targets, Shnewer proposed
deploying a gas tanker truck as a bomb, using roadside bombs or
surface-to-air missiles, and spraying military targets with
machinegun fire. He sought to acquire AK–47 machineguns from
Omar to use in such an attack.

2

Dritan, Shain, and Eljvir Duka are brothers who were born in
Albania. During the events that were the subject of the trial, they
were in the United States illegally. In 2006 and 2007, the Dukas
took at least two trips to the Poconos to train for jihad by firing
weapons, attempting to buy automatic weapons, discussing jihad,
and watching violent jihadist videos. The Dukas befriended
government informant Bakalli, a fellow Albanian, and encouraged
him to join them in avenging Muslims who had been oppressed by
the United States and Israel. They viewed and praised a lecture,
Constants on the Path to Jihad, by Anwar al-Awlaki, the
prominent cleric and proponent of attacks against the United States
military, and videos depicting attacks on American soldiers by
violent jihadists in Iraq and elsewhere. In recorded conversations
presented at trial, the Dukas described beheadings depicted in the
videos as just punishment for traitors. The Dukas watched the
beheading videos over and over again until they became inured to
the spectacle. Dritan told Bakalli that, although at first he “couldn't
take it,” “[n]ow I see it and it's nothing, I do not care. I saw
hundreds being beheaded.” Similarly, Eljvir told Bakalli that the
beheadings were difficult to watch at first, but that “[n]ow we can
watch it no problem.”
Like Shnewer, the Dukas sought to acquire firearms to further their
plans. They could not acquire weapons lawfully because they were
in the country illegally, so they turned to the black market. By
January 2007, the three brothers told Bakalli they had acquired a
shotgun, two semi-automatic rifles, and a pistol, and they
continued to look for opportunities to buy machineguns.
Later that spring, Dritan Duka ordered nine fully automatic
weapons—AK–47s and M–16s—from a contact of Omar's in
Baltimore. The FBI arranged a controlled transaction, and, on May
7, 2007, Dritan and Shain Duka went to Omar's apartment to
retrieve their weapons. After handing Omar $1,400 in cash, Dritan
and Shain examined and handled four fully automatic machineguns
and three semiautomatic assault rifles. They asked Omar for
garbage bags to conceal the weapons (so they would look like golf
clubs) as they carried them out to the car. Before they could get
there, however, federal and state law enforcement officers entered
Omar's apartment and arrested them. The entire transaction was
captured on video by equipment installed in Omar's apartment by
the FBI and was shown to the jury at trial.
Serdar Tatar is a lawful permanent resident in the United States
who was born in Turkey. Tatar appears in the video of defendants'
January 2006 training trip to the Poconos. After extensive
discussions with Omar about Shnewer's plan to attack Fort Dix,
3

Tatar agreed to help by providing Omar with a map of Fort Dix to
use in planning such an attack. Regarding the overall plan to attack
Fort Dix, Tatar told Omar in a recorded conversation, “I'm in,
honestly, I'm in.”
All five defendants were arrested on May 7, 2007, after Dritan and
Shain Duka completed the controlled firearm purchase from Omar.
United States v. Duka, 671 F.3d 329, 333–35 (3d Cir. 2011).
Mr. Tatar was ultimately convicted after a jury trial of conspiracy to murder members of
the United States military in violation of 18 U.S.C. § 1117. He received a sentence of 396
months imprisonment. The Third Circuit affirmed the judgment of conviction against Mr. Tatar
in December, 2011. See Duka, 671 F.3d at 329.
Thereafter, in 2013, Mr. Tatar filed a § 2255 motion and then an amended § 2255 motion.
The amended motion raised the following ineffective assistance of counsel claims:
1. Failure to object to the jury charge when it reduced the burden of proof (“Claim I”).
2. Failure to seek dismissal of Count I 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 Mr. Tatar to testify and obstructing his right to present a defense
(“Claim IV”).
5. Failure of appellate counsel to raise Claims II and III on appeal (“Claim V”).
6. Failure of trial counsel post-verdict to seek to dismiss the remaining count of
conspiracy due to retroactive misjoinder and the failure of appellate counsel to raise the
issue of retroactive misjoinder on appeal (“Claim VI”).

4

On February 11, 2016, this Court denied all of Mr. Tatar’s claims and denied a certificate of
appealability on all of his claims as well.2 Most relevant to Mr. Tatar’s pending motions for
reconsideration was this Court’s discussion of Claim IV. This Court analyzed Claim IV as
follows:
In Claim IV, Mr. Tatar claims that his trial counsel was ineffective
due to his failure to permit him to testify in his own defense. A
defendant has the constitutional right to testify on his own behalf at
trial. See Rock v. Arkansas, 483 U.S. 44, 51–52 (1987). “The right
is personal and can be waived only by the defendant, not defense
counsel.” Unites States v. Leggett, 162 F.3d 237, 245 (3d Cir.1998)
(citations omitted). “If a defendant does waive this right, the
waiver must be knowing, voluntary and intelligent.” Id. (citations
omitted). Where a petitioner claims that his attorney was
ineffective by denying him the right to testify, the Strickland
standard is used to analyze the claim. See Palmer v. Hendricks,
592 F.3d 386, 394 (3d Cir. 2010) (citations omitted).
Mr. Tatar did not testify at trial. Nevertheless, Mr. Tatar claims
that he informed counsel that he believed that his personal
testimony “was paramount in an effort to place before the court or
communicate to the jury a withdrawal defense, i.e., (1) detailing
the factual circumstances demonstrating an effort to perform a
withdrawal from the underlying conspiracy, and (2) detailing the
actual behavior of Detectives/F.B.I. agents (interviewing officers)
during the course of that effort.” (Dkt. No. 27 at p. 41)
Mr. Tatar has supplied the Court with his affidavit which is
attached to his reply brief in which he states as follows:
(3) Affiant aver that it is an undeniable fact that in
advance of trial as part of conference with counsel
affiant informed the attorney Richard Sparaco of his
desire to testify at trial in his own defense. Further
informing counsel that I thought (believed) my
testimony would be integral to communicating to
the jury the intricate details related to my effort to
withdraw from alleged crimes; at the time the
attorney expressed no difficulty or umbrage to me
“taking the stand” and testifying as part of my trial,
2

On February 18, 2016, this Court entered an order amending the February 11, 2016 Opinion to
correct a typographical error.
5

but, assured me it can be done and he will prepare
for it.
(4) Then there became a point in time at a later date,
while sitting in proximity to, and in “ear-shot” of a
codefendant Mr. Shain Duka, that I once again
informed or reminded my attorney of my desire to
testify in my own defense. The attorney's only
response was to tersely state that he wasn't prepared
to put me on the stand, and likewise, he denied my
request to take the stand in my own defense. In
support of this averment in relation to that single
occasion I provide an affidavit appended hereto
from the codefendant (identified above) who also
heard counsel deny my request to take the stand and
further stating that he was unprepared to put me on
the stand for the above stated purpose.
(5) Affiant aver that the issues or subject matter
which I desired to make the jury aware of through
my testimony are relevant and germane to my
withdrawal defense, and it's affiant's belief a failure
to allow my testimony obstructed that defense. Such
is important because if these material facts was
properly conveyed to the jury they very well could
have acquitted affiant on Count One as they did on
Count Two; particularly once they got a clear
understanding as to why I, somehow, stayed
involved in the case after a unilateral effort to
contact law enforcement.
(Dkt. No. 38 at p. 15) Mr. Tatar states that his expressed desire to
testify in his own defense fell on “deaf ears,” as his trial counsel
failed to invest time to investigate a withdrawal defense and
discouraged him from taking the stand. (See Dkt. No. 27 at p. 41)
Indeed, Mr. Tatar explains that there came a time in advance of
trial during a legal conference that included the presence of his codefendant Shain Duka “in which [Mr. Tatar] informed his attorney
of his desire to testify at trial before the jury; but, the attorney
simply retorted (tersely) that he wasn't prepared to put Petitioner
on the stand, and therefore, discouraged the idea altogether.” (Id. at
p. 44) Mr. Tatar has attached an affidavit of Shain Duka to his §
2255 motion in further support of Claim IV which states as
follows:
1. I, Shain Duka, have personal knowledge of a
conversation between my codefendant, Serdar
Tatar, and his attorney, Richard Sparaco, in the case
6

United States v. Shnewer et al, No. 07-459, 2008
WL 4860403 (District of New Jersey).
2. Serdar Tatar clearly and explicitly made know to
his attorney, Richard Sparaco, that he intended to
take the stand in his own defense.
3. Mr. Sparaco denied his request stating that he
was unprepared to call Serdar Tatar to testify and
thus would not call him to the stand.
4. I have personal knowledge of this conversation
because I was sitting right next to both Mr. Sparaco
and Serdar Tatar at the defense table and was able
to hear the entire conversation.
5. It was clear that Serdar Tatar intended to take the
stand and his attorney prevented him from doing so.
(Dkt. No. 27 at p. 78)
In further support of this Claim, Mr. Tatar explains what he would
have testified to if he took the witness stand in his own defense:
(1) There became a point in time while conducting
business at Petitioner's 7/11 Store that a particular
Philadelphia Police sergeant, Sean Dandruff, known
personally by Pet., dropped in to make a purchase.
Petitioner, upon seeing the officer in formed him
that he needed to speak with him about a matter of
national security (exact words).
(2) Petitioner informed the Officer Dandruff of
what he believed to be a conceivable plot to cause
some type of harm or danger to the Fort Dix
Military Base. The officer in turn wrote down
Petitioners contact information and told him the
F.B.I. would be in touch with him soon. The officer
advised, that in the mean time to stay in touch with
those persons (suspects), in order to get more
information for the F.B.I. when they pay a visit.
(3) Eventually, approximately three weeks later, a
Joint Terrorist Task Force (hereinafter JTTF)
Officer Jay Rycek of the Philadelphia Police Dept.,
and the F.B.I. Special Agent Sean Brenman
show[e]d-up at the 7/11 store.
(4) When the Agents finally appeared Petitioner
informed them “first of all, whatever is going on I
don't have anything to do with it, other than I want
to help stop it.” The Agents asked Petitioner what
was going on? Petitioner informed them that a guy
named Omar approached him and inquired about
7

the Fort Dix Military base and maps related to the
base. And he, Omar, spoke something to the effect
of wanting the Americans to pay for what they have
been doing to Muslims.
(5) Petitioner informed the agents that, as soon as,
he heard the statements from Omar his emotional
alarms went off (in his head), and he could barely
contain himself; thus, he's contacted them, and
repeatedly reminded them that he wanted to help
them in the matter.
(6) Then Petitioner tried to give the agents a portion
of recorded conversation between Omar and himself
that he was able to record and preserve on his Cell
Phone in order to show the agents it's the “real
deal”. Petitioner played the small clip for the agents
about four times, but the Agent Rycek suddenly
appeared/seemed very angry, turning very red in the
face – as if he was surprised or not expecting the
Petitioner would have recorded the exchange with
Omar. There also appeared to be some
conflicting/contradictory emotions where the other
Agent Sean Brenman appeared more intrigued and
amicable to the idea of underlying record, where he
also sought to hear the record over again.
(7) However, when Agent Brenman was done with
listening to the recording, instead of taking it with
them as something to their investigation, he simply
instructed Petitioner not to loose [sic] it. Then the
agents inquired as to who else was involved in the
situation? And Petitioner informed that another guy
named Muhammad. Petitioner did not know
Muhammad's last name, nor where he actually
lived, so he simply offered the agents his phone
number. And volunteered that he believed the
agents should be able to get whatever additional
information they needed about the maps from
Muhammad. Furthermore, that Muhammad
frequented Petitioner's restaurant across from the
Military Air Base.
(8) In a strange turn of events, when Petitioner
offered Muhammad's number to Agent Rycek, he
again produced strange contradictory energy and
actions via his facial expressions and overall body
language – suggesting he didn't want to take the
info. from Pet[itioner]. In fact, the agent suddenly
exhaled, “no no, no, we don't need that right now”!
8

And again there was this awkward silence between
the agents and Petitioner. The agents behavior was
scaring Petitioner, [p]articularly where the two
agents kept exchanging conflicting looks with each
other. And just as Petitioner was about to ask
“what's going on here”? Agent Brenman interjected
and said: “I'll take that number”, and Petitioner
immediately gave it to him. The agent wrote the
number of one who's now become Petitioner's
convicted coconspirator Muhammad Shenewer
[sic]. Ironically, none of the fore going information
has been properly preserved as what is legally
known as 302 material, or agents personal notes.
(9) Quite the contrary, the foregoing facts was
obfuscated, misrepresented and advanced before the
trial court by the prosecution as part of their casein-chief in the limited context case as if Petitioner
has made up a bunch of lies, e.g., about the maps, or
that Petitioner told them he did not know any one
was involved in underlying crimes.
(Dkt. No. 27 at p. 44-45)
The government argues in its response that this Court can deny
Claim IV because Mr. Tatar has failed to establish either prong of
Strickland. In support of its arguments, the government includes an
affidavit from Mr. Sparaco, Mr. Tatar's trial counsel. Mr. Sparaco's
affidavit paints quite a different picture with respect to his
interactions with Mr. Tatar and with respect to the advice and
counsel he gave him. That type of evidence is important to
determine whether Mr. Tatar has satisfied the first prong of
Strickland – whether Mr. Sparaco's counsel fell below an objective
standard of reasonableness. However, this Court will decline to
engage in an analysis on the first prong of Strickland because
Claim IV can and will be decided on the merits at this time on the
second prong of Strickland – whether petitioner has made the
requisite showing of prejudice to warrant granting relief.
As Mr. Tatar's amended § 2255 motion makes clear, he wanted to
testify so that he could attempt to establish the affirmative defense
of his withdrawal from the conspiracy. As the United States
Supreme Court has explained with respect to the withdrawal
defense:
Far from contradicting an element of the offense,
withdrawal presupposes that the defendant
9

committed the offense. Withdrawal achieves more
modest ends than exoneration. Since conspiracy is a
continuing offense, United States v. Kissel, 218 U.S.
601, 610, 31 S. Ct. 124, 54 L. Ed. 1168 (1910), a
defendant who has joined a conspiracy continues to
violate the law “through every moment of [the
conspiracy's] existence,” Hyde v. United States, 225
U.S. 347, 369, 32 S. Ct. 793, 56 L. Ed. 1114 (1912),
and he becomes responsible for the acts of his coconspirators in pursuit of their common plot,
Pinkerton v. United States, 328 U.S. 640, 646, 66 S.
Ct. 1180, 90 L. Ed. 1489 (1946). Withdrawal
terminates the defendant's liability for
postwithdrawal acts of his co-conspirators, but he
remains guilty of conspiracy.
Withdrawal also starts the clock running on the time
within which the defendant may be prosecuted, and
provides a complete defense when the withdrawal
occurs beyond the applicable statute-of-limitations
period. A complete defense, however, is not
necessarily one that establishes the defendant's
innocence. For example, we have held that although
self-defense may entirely excuse or justify
aggravated murder, “the elements of aggravated
murder and self-defense [do not] overlap in the
sense that evidence to prove the latter will often
tend to negate the former.” Martin, supra, at 234,
107 S. Ct. 1098; see Leland v. Oregon, 343 U.S.
790, 794–796, 72 S. Ct. 1002, 96 L. Ed. 1302
(1952) (same for insanity defense). Likewise,
although the statute of limitations may inhibit
prosecution, it does not render the underlying
conduct noncriminal. Commission of the crime
within the statute-of-limitations period is not an
element of the conspiracy offense. See United States
v. Cook, 17 Wall. 168, 180, 21 L. Ed. 538 (1872).
The Government need not allege the time of the
offense in the indictment, id., at 179–180, and it is
up to the defendant to raise the limitations defense,
Biddinger v. Commissioner of Police of City of New
York, 245 U.S. 128, 135, 38 S. Ct. 41, 62 L. Ed. 193
(1917). A statute-of-limitations defense does not
call the criminality of the defendant's conduct into
question, but rather reflects a policy judgment by
the legislature that the lapse of time may render
criminal acts ill suited for prosecution. See, e.g.,
10

Toussie v. United States, 397 U.S. 112, 114–115, 90
S. Ct. 858, 25 L. Ed. 2d 156 (1970). Thus, although
union of withdrawal with a statute-of-limitations
defense can free the defendant of criminal liability,
it does not place upon the prosecution a
constitutional responsibility to prove that he did not
withdraw. As with other affirmative defenses, the
burden is on him.
Smith v. United States, 133 S. Ct. 714, 719-20 (2013).
As the United States Supreme Court in Smith makes clear, a
withdrawal defense would have presupposed that Mr. Tatar
committed the offense such that even upon a withdrawal, Mr. Tatar
still would have remained guilty of the conspiracy. See 133 S. Ct.
at 721 (“His individual change of heart (assuming it occurred)
could not put the conspiracy genie back in the bottle”). Instead,
what Mr. Tatar's proposed withdrawal defense had the potential to
do is start the running of the statute of limitations on the
conspiracy charge. However, there is no dispute that the May 7,
2007 initial indictment against Mr. Tatar was brought within the
relevant statute of limitations. See 18 U.S.C. § 3282 (“Except as
otherwise provided by law, no person shall be prosecuted, tried, or
punished for any offense, not capital, unless the indictment is
found or the information is instituted within five years next after
such offense shall have been committed.”). Thus, Mr. Tatar's
proposed withdrawal defense would not have made the
government's indictment against him untimely. Accordingly, he
has failed to show to a reasonable probability that the outcome of
his trial would have been different because his withdrawal defense,
even if, assuming arguendo, Mr. Tatar did in fact withdraw from
the conspiracy, would not have altered the fact that he was guilty
of conspiracy in the first place. [FN 3]
[FN 3] This Court need not analyze respondent’s
alternative theory that Mr. Tatar failed to show that
he actually withdrew from the conspiracy because
his purported withdrawal would not have changed
the outcome of the proceedings as Mr. Tatar was
still charged with conspiracy within the applicable
statute of limitations.
A brief interlude is warranted differentiating Mr. Tatar's case from
the Duka brothers § 2255 motions where this Court recently
conducted an evidentiary hearing on similar ineffective assistance
of counsel claims regarding a failure to testify. The Duka brothers
11

claim in their § 2255 motions that their decision not to testify was
the result of attorney coercion. The Duka brothers all claim that
they did not voluntarily waive their right to testify at trial because
their decision was the product of attorney coercion when each of
their attorneys told them that they were unprepared to put them on
the stand despite each brothers' stated intent of wanting to testify.
See Duka v. United States, Nos. 13-3664, 13-3665, 13-3666, 2015
WL 5768786, at *4-5 (D.N.J. Sept. 30, 2015). In an Opinion dated
September 30, 2015, this Court stated that it would conduct an
evidentiary hearing on the Duka brothers claims of ineffective
assistance of counsel when they were denied the right to testify at
trial. See id. at *6. Indeed, on January 6, 2016, this Court
conducted an evidentiary hearing on the Duka brothers' failure to
testify ineffective assistance of counsel claims. That hearing was
limited to whether the attorney's conduct fell below an objective
standard of reasonableness.
Mr. Tatar's amended § 2255 motion is clear that the reason he
sought to testify was to pursue a withdrawal defense.
Comparatively, the Duka brothers' assert a complete defense in
their brief that they wanted to testify to show that they never
entered into a conspiracy in the first place. While the Duka
brothers offer a complete defense, Mr. Tatar's withdrawal defense
is not a complete defense, but rather, only starts the running of the
statute of limitations. Assuming arguendo that Mr. Tatar
affirmatively withdrew from the conspiracy, the only impact of
that defense would have been whether the conspiracy charge
against him was timely. However, as previously stated, the
conspiracy charge was timely. Thus, Mr. Tatar's withdrawal
defense, which is the stated reason why Mr. Tatar says he wanted
to testify, would not have changed the outcome of the proceedings
to a reasonable probability because the charge was timely.
Accordingly, this Court is clearly able to decide Mr. Tatar's Claim
IV solely on the prejudice prong of the Strickland. Accordingly, an
evidentiary hearing is not warranted on this Claim and Mr. Tatar is
not entitled to relief on Claim IV as well.
Tatar v. United States, No. 13-3317, 2016 WL 589671, at *9–13 (D.N.J. Feb. 11, 2016)
(footnote omitted).
As previously noted, this Court denied all of Mr. Tatar’s claims (including Claim IV) and
denied a certificate of appealability on all of his claims. Thereafter, Mr. Tatar filed a notice of
appeal. He also sought a certificate of appealability with the Third Circuit, but only on Claim IV.
12

(See C.A. No. 16-1421, Mot. Certificate Appealability filed March 14, 2016) Mr. Tatar stated in
that motion for a certificate of appealability with the Third Circuit that this Court missed the
main issue with respect to Claim IV. Indeed, Mr. Tatar stated that had he taken the stand in his
own defense, the outcome of the trial would have been different. (See id. at p.4-5) On May 24,
2016, the Third Circuit denied a certificate of appealability stating that Mr. Tatar had failed to
provide factual support to warrant an evidentiary hearing on Claim IV. (See Dkt. No. 48)
Thereafter, on January 17, 2017, and again on January 27, 2017, Mr. Tatar filed identical
motions for reconsideration from this Court’s February 11, 2016 Opinion and Order. Mr. Tatar
states that he is bringing his motion for reconsideration under Federal Rules of Civil Procedure
59(e), 60(b)(6) and Local Rule 7.1(i). He states his basis for reconsideration as follows:
In issue “Number Four” Mr. Tatar, through assistance of a fellow
inmate law clerk, had included a “withdraw defense” that was
construed heavily by the District Court rather than Mr. Tatar’s
main argument of being denied a fundamental constitutional right
to testify on his own behalf at trial at the deterrence of counsel. It
was testimony that would have otherwise given the jury detailed
information about his involvement, including a defense of
entrapment by the investigating government agent who insisted
Mr. Tatar engages with others that later led to him being indicted
for conspiracy.
(Dkt. No 49 at p.2) Mr. Tatar claims that his testimony will establish his factual innocence of
having conspired with others. (See id.) More specifically, he asserts that his testimony would
prove and establish that: (1) counsel denied him a basic right to testify at trial; (2) new evidence
that will now refute the Government’s “Fort Dix 5” allegations; (3) evidence that will prove
entrapment; (4) evidence that will establish his factual innocence. (See id. at p.3)
III.

LEGAL STANDARDS

Motions for reconsideration are filed pursuant to Federal Rule of Civil Procedure 59(e)
and are governed by Local Civil Rule 7.1(i) which allows a party to seek reconsideration by the
13

Court in matters in which the party believes the judge has “overlooked.” See Carney v.
Pennsauken Twp. Police Dep't, No. 11–7366, 2013 WL 4501454, at *1 (D.N.J. Aug. 21, 2013)
(citations omitted). “The standard for reargument is high and reconsideration is to be granted
only sparingly.” Yarrell v. Bartkowski, No. 10–5337, 2012 WL 1600316, at *3 (D.N.J. May 7,
2012) (citing United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994)). To be successful on a
motion for reconsideration, a petitioner has the burden to demonstrate: “(1) an intervening
change in the controlling law; (2) the availability of new evidence that was not available when
the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.” Max's Seafood Café ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677
(3d Cir. 1999) (citation omitted); see also Berry v. Jacobs IMC, LLC, 99 Fed.Appx. 405, 410 (3d
Cir. 2004). Additionally, Rule 59(e) requires that it be filed within twenty-eight days after the
entry of judgment. See Fed. R. Civ. P. 59(e).
With respect to Rule 60(b)(6), a court:
may relieve a party from a final judgment for any reason that
justifies relief. The standard for granting a Rule 60(b)(6) motion is
a high one. The movant must show “extraordinary circumstances”
to justify reopening a final judgment. Gonzalez [v. Crosby], 545
U.S. [524,] 536 125 S.Ct. 2641 [(2005)]
[E]xtraordinary circumstances involve[ ] a showing
that[,] without relief from the judgment, “an
‘extreme’ and ‘unexpected’ hardship will result.”
This “hardship” requirement may sometimes be
satisfied when the judgment “precluded an
adjudication on the merits.” But extraordinary
circumstances rarely exist when a party seeks relief
from a judgment that resulted from the party's
deliberate choices.
Michael v. Wetzel, 570 F. App’x 176, 180 (3d Cir. 2014) (quoting Budget Blinds, Inc. v. White,
536 F.3d 244, 255 (3d Cir. 2008)). However, a petitioner’s claim that a court misconstrued

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arguments in a habeas petition does not constitute extraordinary circumstances warranting relief
under 60(b)(6). See Parks v. Jordan, No. 16-3117, 2016 WL 6839148, at *1 (3d Cir. Nov. 21,
2016).
IV.

DISCUSSION

At the outset, Mr. Tatar’s motion for reconsideration pursuant to Federal Rule of Civil
Procedure 59(e) is untimely. As indicated above, this Court denied Mr. Tatar’s amended § 2255
motion in February, 2016. Mr. Tatar then had twenty-eight days to file his motion for
reconsideration. See FED. R. CIV. P. 59(e). However, he did not file his motions for
reconsideration until almost one year later, in January, 2017. Therefore, Mr. Tatar is not entitled
to reconsideration under Rule 59(e) because such motions are untimely. See Smart v. Aramark,
Inc., 618 F. App’x 728, 730 (3d Cir. 2015) (district court acted within its discretion in denying
motion for reconsideration filed more than twenty-eight days after entry of the judgment from
the district court). Mr. Tatar’s motion for reconsideration is also untimely under Local Civil Rule
7.1(i), which requires that it be filed within fourteen days after the entry of judgment.
Accordingly, that leaves Federal Rule of Civil Procedure 60(b)(6) as Mr. Tatar’s only
potential remaining avenue for relief. It appears as if Mr. Tatar is asserting that this Court
misconstrued the totality of his arguments in Claim IV. However, this is insufficient to warrant
granting Mr. Tatar relief under Rule 60(b)(6). It does not constitute an extraordinary
circumstance warranting relief under Rule 60(b)(6) as it is properly a matter for appeal. See
Parks, 2016 WL 6839148, at *1. Indeed, it is also worth noting that Mr. Tatar raised this matter
on his appeal to the Third Circuit in his application for a certificate of appealability before that
Court. However, as indicated above, the Third Circuit denied granting Mr. Tatar a certificate of
appealability on this issue.

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It is possible that one could construe Mr. Tatar’s motions as attempting to raise a new
claim for habeas relief that was not raised in his previous amended § 2255 motion that this Court
denied. However, as the Third Circuit has explained:
in those instances in which the factual predicate of a petitioner's
Rule 60(b) motion attacks the manner in which the earlier habeas
judgment was procured and not the underlying conviction, the Rule
60(b) motion may be adjudicated on the merits. However, when
the Rule 60(b) motion seeks to collaterally attack the petitioner's
underlying conviction, the motion should be treated as a successive
habeas petition.
See Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). It does not appear that Mr. Tatar has
received any authorization from the Third Circuit to file a second or successive § 2255 motion.
Thus, to the extent that Mr. Tatar’s motions for reconsideration do not challenge the manner in
which this Court denied his amended § 2255 motion, but instead challenges his underlying
federal judgment of conviction, it may not be a “true” Rule 60(b) motion, but rather, Mr. Tatar’s
attempt to bring another § 2255 motion. As Mr. Tatar lacks authorization to do so form the Third
Circuit, such a request for relief is not proper before this Court at this time. Therefore, Mr.
Tatar’s motions for reconsideration will be denied.
V.

CERTIFICATE OF APPEALABILITY

A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court's
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327
(2003). To the extent one may be necessary, this Court declines to grant Mr. Tatar a certificate of
appealability.

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VI.

CONCLUSION

For the foregoing reasons, Mr. Tatar’s motions for reconsideration will be denied. A
certificate of appealability shall not issue. An appropriate order will be entered.

DATED: March 10, 2017

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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