Case 5:17-cr-00228-FJS Document 116 Filed 05/10/22 Page 1 of 14

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

v. 5:17-CR-228
(FJS)
CHARLES TAN,

Defendant.

APPEARANCES OF COUNSEL

OFFICE OF THE UNITED STATES LISA M. FLETCHER, AUSA

ATTORNEY TAMARA THOMSON, AUSA
James Hanley U.S. Courthouse
& Federal Building
100 South Clinton Street
P.O. Box 7198
Syracuse, New York 13261-7198

LAW OFFICES OF JOEL B. RUDIN, P.C. JOEL B. RUDIN, ESQ.

152 West 57th Street
8th Floor
New York, New York 10019
Attorneys for Defendant

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION AND BACKGROUND

On June 22, 2018, Charles Tan ("Defendant") pled guilty to all three counts of the

Superseding Indictment charging him with one count of receipt of a firearm and ammunition

with intent to commit an offense, in violation of 18 U.S.C. § 924(b), and two counts of making

a false statement during the purchase of a firearm, in violation of 18 U.S.C. §§ 922(a)(6),

924(a)(1)(A), and 924(a)(2). See Dkt. No. 90, Judgment. On November 19, 2018, the Court
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sentenced Defendant to a total term of 240 months' imprisonment with 3 years of post-release

supervision, which was a downward departure from the Guidelines recommendation of 324 to

405 months. See id.; Dkt. No. 100, Sentencing T., at 2. Defendant initially appealed the

judgment to the Second Circuit but subsequently withdrew that appeal. See Dkt. Nos. 93, 103.

Pending before the Court is Defendant's motion to vacate his judgment and correct his sentence

pursuant to 28 U.S.C. § 2255. See Dkt. No. 106. Defendant's motion is based on the ground

that his counsel at sentencing, Mr. Brian C. DeCarolis, Esq. and Mr. Jamie L. Nobles, Esq.,

were ineffective because they failed to consult a forensic psychologist to evaluate Defendant or

to present readily available evidence regarding the history of domestic abuse in Defendant's

home and how it impacted him. See Dkt. No. 106-2, Def's Memorandum in Support, at 23-30.

II. DISCUSSION

A. Legal standard

"Section 2255 of Title 28, U.S.C., provides that a prisoner in custody under sentence of a

federal court may file a motion in the 'court which imposed the sentence to vacate, set aside or

correct the sentence.'" Hill v. United States, 368 U.S. 424, 426 (1962) (quoting [28 U.S.C.

§ 2255]). The statute provides four grounds upon which a court may grant such relief: (1) "that

the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that

the court was without jurisdiction to impose such sentence"; (3) "that the sentence was in excess

of the maximum authorized by law"; or (4) that the sentence "is otherwise subject to collateral

attack[.]" 28 U.S.C. § 2255(a).

The Supreme Court has construed these four grounds for relief narrowly, following the

general rule that a § 2255 collateral attack is not allowed to "do service for an appeal." Adams

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v. United States ex rel. McCann, 317 U.S. 269, 274 (1942) (citations omitted). However, "an

ineffective-assistance-of-counsel claim may be brought [for the first time] in a collateral

proceeding under § 2255, whether or not the [defendant] could have raised the claim on direct

appeal." Massaro v. United States, 538 U.S. 500, 504 (2003); see also Mui v. United States,

614 F.3d 50, 51 (2d Cir. 2010) (holding that "a defendant who raises on direct appeal

ineffective assistance claims based on the strategies, actions, or inactions of counsel that can be,

and are, adjudicated on the merits on the trial record, is precluded from raising new or repetitive

claims based on the same strategies, actions, or inactions in a Section 2255 proceeding.

However, such a defendant is not precluded from raising new ineffective assistance claims

based on different strategies, actions, or inactions of counsel in a subsequent Section 2255

proceeding.").

B. Ineffective assistance of counsel

The Sixth Amendment guarantees the right to counsel, which the Supreme Court has

interpreted to mean the right to the effective assistance of counsel. See Strickland v.

Washington, 466 U.S. 668, 686 (1984). "A convicted defendant's claim that counsel's

assistance was so defective as to require reversal of a conviction … has two components." Id.

at 687. The Supreme Court explained those components as follows:

First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction … resulted from a breakdown
in the adversary process that renders the result unreliable.

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Id.

Regarding the first step—whether counsel was functioning as "counsel" guaranteed by

the Sixth Amendment—the Supreme Court noted that "the defendant must show that counsel's

representation fell below an objective standard of reasonableness." Id. at 688. "The proper

measure of attorney performance remains simply reasonableness under prevailing professional

norms." Id. The Strickland court noted that "[j]udicial scrutiny of counsel's performance must

be highly deferential." Id. at 689. "A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time." Id. "[A] court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action 'might be

considered sound trial strategy.'" Id. (quotation omitted).

With respect to the second step—whether counsel's conduct prejudiced the defendant—

"[t]he defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Notably, "[a] reasonable probability is a probability sufficient to undermine confidence in the

outcome." Id. "In making this determination, a court hearing an ineffectiveness claim must

consider the totality of the evidence before the judge or jury." Id. at 695.

In Hill v. Lockhart, the Supreme Court held that "the two-part Strickland v. Washington

test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v.

Lockhart, 474 U.S. 52, 58 (1985). According to the Court in Hill, the first half of the Strickland

test does not change in the context of guilty pleas. See id. However, "in order to satisfy the

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'prejudice' requirement, the defendant must show that there is a reasonable probability that, but

for counsel's errors, he would not have pleaded guilty and would have insisted on going to

trial." Id. at 59. The Second Circuit has also held that the Strickland test applies to counsel's

conduct at sentencing proceedings. See United States v. Workman, 110 F.3d 915, 920 (2d Cir.

1997).

In this case, Defendant contends that his counsel at sentencing erred in two critical

ways. First, he asserts that sentencing counsel erred in choosing not to have a forensic

psychiatrist examine Defendant. Second, he contends that sentencing counsel failed to provide

the Court with documentation in their possession regarding Defendant's abusive household and

how that abuse might have influenced his actions. The Court addresses each of these

contentions in turn. 1

1. Whether counsel was ineffective for failing to have a mental health expert
examine Defendant prior to sentencing

Defendant first maintains that his counsel was ineffective for failing to call an expert

forensic psychiatrist to examine him prior to sentencing to support his request for a downward

departure from the Guidelines. "Courts in this Circuit have made clear that '[t]he decision

whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a

1
Before analyzing these claims in full, the Court notes that Defendant's pending motion –
although brought under the guise of one for ineffective assistance of counsel at sentencing on
his federal charges – appears to ask the Court to justify his conduct in murdering his father as
merely a result of his youth, his mental health, and his experiences as a victim of domestic
violence. Defendant's prior counsel – the same attorneys who he now claims were ineffective –
successfully got his state-court murder charge dismissed. In this case, Defendant pled guilty to
unlawful receipt of a firearm and making false statements to obtain that firearm. His conduct
with respect to pulling the trigger of that firearm and ending his father's life, and his reasons for
doing so, are clearly related, but that is not the conduct for which he is serving this sentence.
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tactical decision of the sort engaged in by defense attorneys in almost every trial.'" Benton v.

LaClair, No. 6:14-CV-06012(MAT), 2015 U.S. Dist. LEXIS 27117, *15 (W.D.N.Y. Mar. 5,

2015) (quoting United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S.

958, 108 S. Ct. 357, 98 L. Ed. 2d 382 (1987)). This strategic decision extends to calling experts

at sentencing to highlight a defendant's mental illness as a mitigating factor. See Petrillo v.

United States, 147 F. Supp. 3d 9, 13 (D. Conn. 2015); Aliotta v. United States, No. 99 Civ. 1727

(SAS), 1999 U.S. Dist. LEXIS 16703, *7 (S.D.N.Y. Oct. 25, 1999). "In general, whether or not

to hire an expert is the type of strategic choice by counsel that may not be second-guessed on

habeas corpus review." United States v. Holland, No. 2:01-cr-135, 2013 U.S. Dist. LEXIS

159095, *23 (D. Vt. Oct. 16, 2013) (citing United States v. Best, 219 F.3d 192, 201 (2d Cir.

2000), cert. denied, 532 U.S. 1007, 121 S. Ct. 1733, 149 L. Ed. 2d 658 (2001)) (other citations

and parentheticals omitted), recommendation adopted by 2013 U.S. Dist. LEXIS 158056

(declining to find that defense counsel was ineffective for failing to call an expert witness to

support a downward departure based on the defendant's mental impairments).

Defendant focuses his argument that a forensic expert evaluation was necessary on the

following statement that the Court made at sentencing: "a complete accounting of the murder

and/or psychological evaluation detailing [Defendant's] mental state would have been helpful to

this [C]ourt, especially in considering the arguments by counsel as to [Defendant's] acceptance

of responsibility or remorse." See Dkt. No. 100 at 12. Contrary to Defendant's assertion,

however, simply because a psychological evaluation would have been helpful, does not mean

that defense counsel acted unreasonably in failing to obtain that evaluation or in precluding

Defendant from providing a complete accounting of the murder. The Court was not completely

without evidence of Defendant's mental state.

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For example, Defendant attached a letter to his sentencing memorandum in which he

addressed the Court and explained that it was "clear that bottling up [his] problems/emotions,"

including "fear, anxiety, [and] anger," would "backfire." See Dkt. No. 86, Def's Sentencing

Memorandum, at 27. Defendant admitted in that letter that he "acted on impulse, leading to

[his] series of immature and irrational decisions." See id. at 26. In Defendant's mother's letter,

also attached to his sentencing memorandum, she stated that Defendant's father made him and

his brother "suffer physically, mentally and psychologically traumatized them." See id. at 32.

The sentencing memorandum also detailed some of the abuse that Defendant and his family

allegedly suffered at the hands of Defendant's father and described that Defendant was in

distress believing that his mother was in grave danger. See id. at 9-14 (¶¶ 23-26, 29-42). The

Court also adopted the factual findings in the PSR without objection from Defendant, which

included a statement from a coach about Defendant's mental state leading up to the offense as

well as Defendant's own statements to Probation about his mental health and abusive past. See

Dkt. No. 100 at 2-3; Dkt. No. 88, PSR, at ¶¶ 15, 52, 56-57.

At sentencing, Defendant's counsel argued that there were unique situations warranting a

downward departure in Defendant's sentence, "including the age of the defendant at the time of

the offense, the circumstances leading up to the offense, his community support, and his

background." See Dkt. No. 100 at 3. Defense counsel explained that there was "abuse in the

household," but noted that they were "not exactly sure how that affects one where they've been

living with that for their entire life and seeing what [Defendant] saw." See id. at 4.

Nonetheless, defense counsel indicated that Defendant's conduct was unusual for him, an ivy-

league educated 19-year-old, "who was persistent, patient, dedicated, [and] a planner, in every

other area of his life." See id. at 4-5.

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Furthermore, although Defendant did not provide a complete accounting of the events of

February 5, 2015, he addressed the Court, apologizing to his friends, family, court officials, and

the community for the "disaster [he] created" and that, in hindsight, "there are numerous

preferable alternatives [he] should have taken[.]" See id. at 9. Defendant stated that he held

himself "entirely accountable" for his actions, that he was "truly sorry," and that he was "asking

for understanding that [his] motivation was driven by fear, that without any action, real harm

would have come to [his] mom." See id. at 9-10. He also promised to "seek professional help

for [his] unbearable problems[.]" See id. at 10.

In coming to its decision to impose a below-Guidelines sentence, the Court indicated

that it considered the parties' arguments and the entire record in the case. See id. The Court

informed Defendant that it believed he was "a very troubled young man, and in real need of

mental health treatment." See id. The Court also expressly considered the "apparent abusive

nature of [Defendant's] home environment." See id. at 11. Notwithstanding this, the Court

factored in the evidence that Defendant sold marijuana and other psychedelic drugs on the

Cornell University campus, the overwhelming evidence that Defendant engaged in the

premeditated illegal purchase of the shotgun, and the overwhelming evidence that Defendant

callously murdered his father. See id. The Court also noted that there was no indication at all in

the record that there was any struggle or threat to Defendant of imminent harm at the time of the

murder, and the Court chastised Defendant that, at the time of sentencing, he "refused to explain

what happened that night after [he] arrived home, or why [he] fled the country." See id. at 12.

The Court also focused on the fact that, when a deputy sheriff confronted Defendant in the

driveway of his family home on or about the time of the murder, Defendant was "calm,

articulate, not upset and not distraught in any way." See id. Thus, the Court was ultimately able

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to conclude that there were sufficient facts to demonstrate that Defendant murdered his father

and planned to flee to China and, thereafter, engaged in a "bizarre scheme to cover up the

circumstances of the murder. Four days later." See id.

Accordingly, even without a forensic examination or full accounting from Defendant of

the events that occurred, the Court considered "the totality of the circumstances, [Defendant's]

age at the time of the offense, the events and the environment of [Defendant's] home that led up

to the offense, and [his] apparent real need for mental treatment," when it sentenced him to 240

months' imprisonment. See id. The Court came to this conclusion at least partially because

defense counsel focused on Defendant's mental health as a mitigating factor. Moreover, in their

attempt to persuade the Court to impose a more lenient sentence, Defense counsel also pointed

to Defendant's upbringing in a violent household, his demeanor and character as shown by

colleagues, friends, and family members in 37 letters of support, and the fact that Defendant

allegedly did not premeditate his father's murder. The Court therefore finds that defense

counsels' decision not to call a forensic expert to examine Defendant and opine as to his mental

conditions was a tactical consideration that was not unreasonable considering the other

mitigating factors counsel raised at sentencing, and the Court will not second-guess that strategy

on review.

Finally, although the Court need not address the prejudice prong, it further finds that

Defendant has not shown that defense counsels' strategies were prejudicial to him. As

discussed above, the Court considered Defendant's mental health when determining his

sentence, and the Court strongly recommended that Defendant get mental health treatment

while incarcerated. See Dkt. No. 100 at 13-14. The Court sentenced Defendant to 240 months'

imprisonment, 84 months below the Guidelines range of 324 to 405 months; and Defendant has

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not pointed to any cases, nor has the Court found any, in which prejudice exists when a

defendant is sentenced so far below the Guidelines range. Thus, the Court denies Defendant's

motion for habeas relief on this basis.

2. Whether counsel was ineffective for failing to present available evidence

regarding domestic abuse in Defendant's household and its impact on him

Defendant next contends that his sentencing counsel were ineffective for failing to

provide the Court with documentation regarding his abusive household and how that abuse

might have influenced his actions. Domestic abuse and witnessing family violence are

mitigating factors that the Court may consider at sentencing. See United States v. Fell, No.

2:01-cr-12, 2014 U.S. Dist. LEXIS 100754, *87 n.20 (D. Vt. July 24, 2014); see also 18 U.S.C.

§ 3553(a). Nonetheless, evidence of mitigating factors presented to the Court to support

reduction of a sentence "'may be in the eye of the beholder.'" Edwards v. Greiner, No. 03-CV-

6124, 2006 U.S. Dist. LEXIS 60116, *27 (E.D.N.Y. Aug. 15, 2006) (quoting Burger v. Kemp,

483 U.S. 776, 794, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (U.S. 1987) (quoting Stanley v. Zant, 697

F.2d 955, 969 & n.11 (11th Cir. 1983) (footnote omitted))). Just as an attorney at trial "has no

duty to present all admissible evidence," Feliciano v. United States, No. 01 Civ. 9398 (PKL), 95

Cr. 941 (PKL), 2004 U.S. Dist. LEXIS 15585, *20 (S.D.N.Y. Aug. 9, 2004) (citing Strickland,

466 U.S. at 690; Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)), and "'does not have a

duty to advance every nonfrivolous argument that could be made,'" Cuoco v. United States, 208

F.3d 27, 32 (2d Cir. 2000) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)), there

is no obligation at sentencing to present every piece of evidence with respect to a mitigating

factor so long as defense counsel conducted the necessary investigation into that factor. See

Strickland, 466 U.S. at 691.

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In this case, in their sentencing memorandum, defense counsel extensively documented

Defendant's abusive household while he was growing up. See Dkt. No. 86 at 10-14 (¶¶ 29-42).

Defense counsel argued that Defendant, his mother, and his brother were "isolated and had no

family support" and that it was "normal for the boys to witness their father hitting their mother

and to spend time in shelters and to receive food from food banks." See id. at 11 (¶ 30).

Defense counsel further explained that Defendant's father had complete control over the family,

including their finances and "what was said to police when they were called to his home[.]" See

id. (¶ 31). They explained that Defendant was not allowed to have friends over after school,

and "[t]o keep in his father's good graces, [Defendant] excelled academically, athletically, and

socially while his mom and brother endured the worst of his father." See id. at 12-13 (¶¶ 37,

38). Defense counsel argued that Defendant's brother had taken the "brunt of the abuse," which

took a psychological toll on him and that Defendant recalls his brother's suicide attempt in

middle school "and how their father mocked him for failing to kill himself[.]" See id. at 14

(¶ 41) (citing Dkt. No. 88 at ¶ 52). They further argued that, after receiving messages from his

brother and speaking to both of his parents, Defendant "truly believed his father was capable of

killing his mother and that it was imminent" and that he "felt it was his time to protect his

mom." See id. (¶ 42).

Defendant repeated these statements in his letter to the Court, which defense counsel

attached to his sentencing memorandum. See id. at 26-28. Defense counsel also attached the

audio of Defendant's mother's 911 call on January 28, 2015, to his sentencing memorandum, in

which she reported that Defendant's father had assaulted her. See Dkt. No. 86 at 96. The Court

further considered Defendant's statements to Probation about his father's abusive nature,

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including that his father used physical and verbal violence against members of Defendant's

household. See Dkt. No. 88 at ¶¶ 47-56.

As discussed above, defense counsel also stated at sentencing that there was "abuse in

the household." See Dkt. No. 100 at 4. The Government similarly acknowledged Defendant's

struggles at home, remarking that Defendant's father may have been a "poor father, . . . a

controlling husband, a stringent man, and perhaps he was abusive." See id. at 5-6. The Court

ultimately took Defendant's experiences of abuse into account, along with his mental health,

when determining Defendant's sentence. See id. at 10, 12.

Notwithstanding this, Defendant now contends that "a reasonable lawyer would have

presented the numerous additional records in [Defendant's] lawyers' possession documenting an

unambiguous pattern of domestic terror by [Defendant's father] dating back to [Defendant's]

birth" and "would also have sought the readily retrievable records of abuse from the New York

State Child Abuse and Maltreatment Register," as further support for Defendant's mitigation

defense. See Dkt. No. 106-2 at 28. Those documents allegedly included the following: (1)

Defendant's mother's application for an order of protection against Defendant's father on

January 29, 2015; (2) an email from Defendant's father to him in which he stated that

sometimes he really "want[ed] to kill" his mother; (3) a police interview in which a neighbor

indicated in 2008 she saw bruising around Defendant's mother's face and eyes; (4) five police

"calls for service" between 2003 and 2007 concerning apparent episodes of domestic violence

between Defendant's parents; and (5) reports from the Ottawa Police Service between 1997 and

1998 showing that, on four occasions, Defendant's mother reported that Defendant's father had

physically and sexually assaulted her. See id. at 13-14.

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Notably, the Court cannot find any caselaw, nor have the parties presented any,

providing that defense counsel was required to supply the Court with all evidence – rather than

select documents – of domestic abuse to support the mitigating factor that Defendant's

household was abusive. Counsel may have chosen not to present this evidence for various

reasons, such as that some of it was more than 20 years old or because it was cumulative of

other evidence of abuse. Whether to present such evidence is a strategy call that does not

render counsels' conduct unreasonable; and, thus, the Court finds that Defendant cannot satisfy

the performance prong of the Strickland test with respect to this argument.

Nonetheless, even if the Court found that defense counsel acted unreasonably in failing

to present all evidence with respect to alleged abuse in Defendant's household, the Court further

finds that Defendant has failed to present any evidence that there was a reasonable probability

that the Court would have further reduced his sentence after reviewing the omitted evidence.

See Pantoliano v. United States, No. 13-cv-6417 (KAM), 2020 U.S. Dist. LEXIS 78170, *13

(E.D.N.Y. May 4, 2020); Polanco v. United States, No. 11 Civ. 3852 (WHP), 05 Cr. 437

(WHP), 2012 U.S. Dist. LEXIS 144922, *16-*18 (S.D.N.Y. Sept. 28, 2012). As such, the

Court denies Defendant's motion pursuant to § 2255 on this basis.

III. CONCLUSION

After carefully considering the entire file in this matter, the parties' submissions and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendant's motion to vacate his judgment and correct his sentence, see

Dkt. No. 106, is DENIED; and the Court further

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ORDERS that, because Defendant has not made a substantial showing of a denial of a

constitutional right, no certificate of appealability shall issue, see 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

Dated: May 10, 2022

Syracuse, New York

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