Tatis v. USA

Filing 17

ORDER: SO ORDERED that Petitioners 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, as well as his requests to reinstate his right to a direct appeal and for an evidentiary hearing, are denied. As Petitioner has failed to m ake a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. The Clerk of the Court shall enter judgment accordingly, close this case, and serve notice of entry of this O rder upon all parties in accordance with Federal Rule of Civil Procedure 77(d)(1), including mailing a copy of this Order to Petitioner at his last known address. CM to pro se petitioner. Ordered by Judge Sandra J. Feuerstein on 2/24/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
RAUL TATIS,

FILED 
CLERK 

2/24/2016 1:18 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Petitioner,
-against-

ORDER
13-CV-1320 (SJF)

UNITED STATES OF AMERICA,
Respondent.
----------------------------------------------------------X 
FEUERSTEIN, J.
Raul Tatis (“Tatis” or “Petitioner”) has moved to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255. Docket Entry No. (“DE”) 1, Mot. to Vacate, Set Aside or Correct
Sentence (the “Petition”). For the reasons set forth below, the Petition is denied.
I.

BACKGROUND
On November 4, 2011, Tatis pled guilty to one (1) count of conspiring to distribute and

possess with intent to distribute at least one hundred (100) grams of heroin, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i), and 846. See DE 7-1, Ex. A, Tr. of Crim. Cause for
Pleading. According to the plea agreement,1 the Government contemplated a base offense level
of thirty-two (32), to be reduced by two (2) levels for Tatis’s acceptance of responsibility and
one (1) level for his timely guilty plea, for a total offense level of twenty-nine (29). See id., Ex.
C, Plea Ag.; see also United States v. Tatis, No. 10-cr-508, DE 55, Gov.’s Sentencing Ltr. dated
June 3, 2012. Tatis “agree[d] not to file an appeal or otherwise challenge, by petition pursuant to
28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court

1
The plea agreement in the record is not signed by either party. See DE 7-1, Ex. C, Plea Ag., at 6.
However, both parties agree that Tatis signed the plea agreement. See id., Ex. A, Tr. of Crim. Cause for
Pleading, at 8-10, 15.

imposes a term of imprisonment of 121 months or below.” DE 7-1, Ex. C, Plea Ag., at ¶ 4.
“This waiver is binding without regard to the sentencing analysis used by the Court.” Id. In its
presentence investigation report (“PSR”), the United States Probation Office (“Probation”)
calculated a total offense level of thirty-six (36), based upon a base offense level of thirty-two
(32) increased by two (2) levels for Tatis’s obstruction of justice and an additional two (2) levels
for his role in the offense. DE 7-1, Ex. B, PSR.
On June 5, 2012, Tatis was sentenced to, inter alia, one-hundred-and-twenty-one (121)
months of imprisonment based upon a total offense level of thirty-one (31) and resulting
sentencing range of one-hundred-and-eight (108) to one-hundred-and-thirty-five (135) months
pursuant to the United States Sentencing Guidelines (“U.S.S.G.”). DE 7-1, Ex. D, Sentencing
Tr., at 11. This Court calculated Tatis’s total offense level at thirty-six (36), and, not finding that
Tatis had obstructed justice, reduced it by two (2) levels, but adopted the two (2)-level
enhancement for Tatis’s role in the offense proposed by Probation. Id. at 5. A two (2)-level
reduction for Tatis’s acceptance of responsibility and one (1)-level reduction for his timely guilty
plea, both pursuant to U.S.S.G. § 3E1.1, were also applied to reach a final, total offense level of
thirty-one (31), to which Tatis did not object. Id. at 8, 11. Based upon a total offense level of
thirty-one (31) and an undisputed criminal history category of I, Tatis was sentenced to onehundred-and-twenty-one (121) months of imprisonment. Id. at 11. Tatis did not directly appeal
his conviction or sentence.
On March 8, 2013, Tatis moved to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. DE 1, Pet. He also asked to “be allowed to pursue his direct appeal or [for] an
evidentiary hearing [to] be granted.” DE 1, Pet’r’s Br., at 23. The Government opposed the
Petition on January 29, 2014, DE 7, Mem. in Opp’n to 2255 Pet.; Tatis did not file a reply.

2

II.

DISCUSSION
Tatis raises three (3) claims in his habeas petition: 1) that the Government violated the

plea agreement by failing to move for a U.S.S.G. § 3E1.1 reduction of his base offense level
during sentencing, DE 1, Br. in Support of Pet’r Raul Tatis (“Pet’r’s Br.”), at 20; 2) that the
Government violated the plea agreement by agreeing with Probation’s total offense level
calculations, DE 1, Pet., at 5; and 3) that his trial counsel rendered ineffective assistance by not
“consult[ing]” with him about filing an appeal, id. at 5-6.
A.

Tatis is Procedurally Barred from Challenging his Sentence, because he did not
seek Direct Review of his Sentence

Initially, Tatis is procedurally barred from challenging his sentence based upon the
Government’s alleged violation of the plea agreement, because he failed to raise those claims in
a direct appeal. “[I]f a petitioner fails to assert a claim on direct review, he is barred from raising
the claim in a subsequent § 2255 proceeding unless he can establish both cause for the
procedural default and actual prejudice resulting therefrom or that he is ‘actually innocent’ of the
crime of which he was convicted.” DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998)
(quoting Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)).
Tatis has not shown “cause” for failing to file a direct appeal, “actual prejudice resulting
therefrom,” or his “actual[] innocen[ce].” See DeJesus, 161 F.3d at 102. Insofar as Tatis argues
that his trial counsel did not “consult” him regarding the filing of an appeal, DE 1, Pet. at 5,
counsel’s alleged failure to discuss an appeal with him does not constitute “cause.” See Coleman
v. Thompson, 501 U.S. 722, 753-54 (1991) (superseded on other grounds) (“Attorney ignorance
or inadvertence is not ‘cause’ . . . . In the absence of a constitutional violation, the petitioner
bears the risk in federal habeas for all attorney errors made in the course of the representation . . .

3

.”). Tatis is therefore procedurally barred from raising claims challenging his sentence in his
Petition.
B.

Tatis Waived his Right to Challenge his Sentence by Entering into the
Plea Agreement

Tatis waived his right to collaterally attack his sentence in his plea agreement. The plea
agreement provides that Tatis “agrees not to file an appeal or otherwise challenge, by petition
pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that
the Court imposes a term of imprisonment of 121 months or below.” DE 7-1, Ex. C, Plea Ag., at
¶ 4 (emphasis added). “This waiver is binding without regard to the sentencing analysis used by
the Court.” Id. Tatis knowingly and voluntarily entered into the plea agreement. See DE 7-1,
Ex. A, Tr. of Crim. Cause for Pleading, at 3, 6, 7, 10. He was sentenced to a term of
imprisonment of one-hundred-and-twenty-one (121) months. DE [ ], Ex. D, Sentencing Tr., at
11. Pursuant to the terms of the plea agreement, Tatis waived his right to collaterally attack his
sentence.
C.

The Government Moved for a U.S.S.G. § 3E1.1 Sentence Reduction

Tatis argues that the Government violated the plea agreement by failing to move for a
reduction of his base offense level during sentencing based upon U.S.S.G. § 3E1.1. DE 1,
Pet’r’s Br., at 20. Section 3E1.1 of the U.S.S.G. provides that:
(a)

If the defendant clearly demonstrates acceptance of responsibility for his
offense, decrease the offense level by 2 levels.

(b)

If the defendant qualifies for a decrease under subsection (a), the offense
level determined prior to the operation of subsection (a) is level 16 or
greater, and upon motion of the government stating that the defendant has
assisted authorities . . . by timely notifying authorities of his intention to
enter a plea of guilty, . . . decrease the offense level by 1 additional level.

4

U.S.S.G. § 3E1.1 (effective Nov. 1, 2011); see U.S.S.G. § 1B1.11(a) (providing that courts shall
use the version of the U.S.S.G. “in effect on the date that the defendant is sentenced”).
At Tatis’s sentencing, the Government recommended a three (3)-level reduction of his
base offense level from thirty-two (32) to twenty-nine (29) pursuant to U.S.S.G. § 3E1.1. See
United States v. Tatis, No. 10-cr-508, DE 55, Gov.’s Sentencing Ltr. dated June 3, 2012. The
Government “respectfully assert[ed] that Tatis’ [sic] total adjusted offense level be calculated at
29, which includes consideration for acceptance of responsibility” pursuant to U.S.S.G.
§ 3E1.1(a) and timely notification of a guilty plea pursuant to U.S.S.G. § 3E1.1(b). Id. at 3. The
Court included the same three (3)-level reduction pursuant to U.S.S.G. § 3E1.1, which the
Government had recommended. DE 7-1, Ex. D, Sentencing Tr., at 4. Tatis’s claim that the
Government failed to move for a U.S.S.G. § 3E1.1 reduction is therefore factually meritless.
D.

The Government did not Endorse Probation’s Sentencing Recommendation

Tatis also argues that the Government violated the plea agreement by agreeing with
Probation’s higher, total offense level sentencing calculations. DE 1, Pet., at 5. Probation
recommended a base offense level of thirty-six (36). DE 7-1, Ex. B, PSR, at 7. The Government
expressly agreed with defense counsel’s sentencing calculations and lower base offense level of
twenty-nine (29). DE 7-1, Ex. D, Sentencing Tr., at 2 (“THE COURT: . . . . [T]he government is
siding, so to speak, with Mr. Obedin [defense counsel] with his calculations. Is that correct?
MR. TIERNEY [for the Government]: Yes, your Honor. For the reasons stated in my letter,
yes.”); United States v. Tatis, No. 10-cr-508, DE 55, Gov.’s Sentencing Ltr. dated June 3, 2012,
at 3 (“[T]he government respectfully asserts that Tatis’ [sic] total adjusted offense level be
calculated at 29 . . . .”). Therefore, Tatis’s claim is factually without merit.

5

E.

Trial Counsel did not Render Ineffective Assistance

Tatis contends that his trial counsel, Mr. Glenn A. Obedin, Esq. (“Mr. Obedin”), was
ineffective for allegedly failing to “consult” with him about filing an appeal. DE 1, Pet., at 5-6.
To prevail on a Sixth Amendment ineffective assistance of counsel claim, a defendant must
prove both that: 1) his counsel’s representation “fell below an objective standard of
reasonableness” measured against “prevailing professional norms;” and 2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); see also Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
The defendant must overcome the “‘strong presumption that counsel's conduct falls within the
wide range of reasonably professional assistance.’” Knowles v. Mirzayance, 556 U.S. 111, 124,
129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009) (quoting Strickland, 466 U.S. at 689).
In his plea agreement, Tatis waived his right to an appeal. “The defendant agrees not to
file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other
provision, the conviction or sentence in the event that the Court imposes a term of imprisonment
of 121 months or below. This waiver is binding without regard to the sentencing analysis used
by the Court.” DE 7-1, Ex. C, Plea Ag., at ¶ 4. The term of imprisonment that was imposed was
121 months. Id., Ex. D, Sentencing Tr., at 11. Accordingly, Tatis waived the right to an appeal.
Moreover, Tatis has not identified any error that Mr. Obedin allegedly made and has thus
failed to satisfy either prong of Strickland. Tatis alleges only that Mr. Obedin failed to “consult”
with him about an appeal but does not explain how any alleged failure to “consult” on an appeal
may constitute ineffective assistance where Tatis had previously waived his right to an appeal.
In addition, Mr. Obedin affirms, and Tatis does not dispute, that “Tatis never asked or directed

6

me to file an appeal on his behalf.” DE 7-1, Ex. E, Obedin Aff., at ¶ 7. Based upon these facts,
Tatis has not overcome the “strong presumption” that Mr. Obedin’s conduct was proper and did
not constitute ineffective assistance pursuant to Strickland and in violation of the Sixth
Amendment. Knowles, 556 U.S. at 124, 129 S. Ct. at 1420, 173 L. Ed. 2d 251.
F.

An Evidentiary Hearing is Improper, and Summary Dismissal is Appropriate

Tatis requests to “be allowed to pursue his direct appeal or [for] an evidentiary hearing
[to] be granted.” DE 1, Pet’r’s Br., at 23. “If it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the
judge must dismiss the motion . . . .” Rule 4(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts (effective February 1, 1977, amended February
1, 2010). Because Tatis’s claims are wholly without merit, an evidentiary hearing is
unnecessary, and the Petition is denied.
III.

CONCLUSION
For the reasons stated above, Petitioner’s 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence, as well as his requests to reinstate his right to a direct appeal and for an
evidentiary hearing, are denied. As Petitioner has failed to make a substantial showing of the
denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Clerk of the Court shall enter judgment accordingly, close this case, and serve notice of
entry of this Order upon all parties in accordance with Federal Rule of Civil Procedure 77(d)(1),
including mailing a copy of this Order to Petitioner at his last known address.
SO ORDERED.
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: February 24, 2016
Central Islip, New York
7