Opinion
Crim. No.: 91-108 (JLL).
January 27, 2009
For Respondent: Eric Moran, AUSA
ORDER
This matter comes before the Court on the petition of Defendant Richard Paul Zuckerman ("Defendant" or "Zuckerman") to set aside his conviction through a writ of coram nobis or audita querela. The United States of America ("the Government") submitted an answer in response to the petition, and Zuckerman submitted a reply in furtherance thereof. For the reasons set forth in the accompanying Opinion,
IT IS on this 27th day of January, 2009,
ORDERED that Defendant's petition [CM/ECF #1] is denied with prejudice.
OPINION
This matter comes before the Court on the petition of Defendant Richard Paul Zuckerman ("Defendant" or "Zuckerman") to set aside his conviction through a writ of coram nobis or aud ita querela. The United States of America ("the Government") submitted an answer in response to the petition, and Zuckerman submitted a reply in furtherance thereof. This Court having considered both parties' submissions, Defendant's petition is denied.INTRODUCTION
In 1988, while pursuing a civil case in this District, Zuckerman sent a letter to the judge assigned to his case threatening physical violence if he was not granted oral argument on a pending motion. (Answer at 1-2.) After this threat was reported, a grand jury returned the first indictment against Zuckerman, charging him with mailing a threatening communication to the judge. (Id. at 2.) Zuckerman was subsequently found incompetent to stand trial, and the first indictment was dismissed without prejudice on the Government's request on March 30, 1990. (Id. at 2-3.)
After an interval of approximately one year, information came to the attention of the Federal Bureau of Investigation and the U.S. Attorney's Office that Zuckerman sought to purchase guns in Florida and bring them back to New Jersey. (Id. at 3.) The U.S. Attorney's Office went back to the grand jury with this information, and the grand jury returned the second indictment against Zuckerman, once again charging him with mailing a threatening communication to a federal judge. (Id.) Zuckerman elected to represent himself at trial, and the jury returned a guilty verdict on July 11, 1991. (Id. at 4.) The sentencing judge found Zuckerman to be suffering from a mental disease or defect, and sentenced him provisionally to psychiatric hospitalization for up to five years. (Id.)
Following an unsuccessful appeal and during the pendency of his first habeas petition, the hospital treating Zuckerman found that he no longer required institutionalization. (Id. at 4-5.) When brought before this Court again for final sentencing on February 22, 1993, Zuckerman's habeas petition was denied, and he was sentenced to time served and given three years' supervised release. (Id. at 5-6.) Zuckerman's appeal of his first habeas petition was also unsuccessful. (Id. at 6.) Zuckerman filed a second habeas petition on February 4, 1994, which was also denied by this Court and appealed unsuccessfully by Zuckerman. (Id. at 6-7.)
In its opinion and order requiring the Government to answer Zuckerman's petition, several counts of the petition were dismissed with prejudice. (Op. of Oct. 16, 2008 at 4-5.) The remaining claims from Zuckerman's petition are "the Fifth Amendment claim regarding his right to bear arms, the change of venue claim, the challenge to the make-up of his appellate panel, the ineffective assistance claims, and the jury instruction claim." (Id. at 5.)
DISCUSSION
Granting a writ of coram nobis or audita querela falls under this Court's limited authority under the All Writs Act, 28 U.S.C. § 1651, to issue certain extra-statutory writs. "[T]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Carlisle v. United States, 517 U.S. 416, 429 (1996) (quoting Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 43 (1985)).
Coram nobis relief may be granted by federal courts in criminal matters where an individual continues to suffer from the effects of a criminal conviction but the individual is no longer in custody. United States v. Baptiste, 223 F.3d 188, 189 (3d Cir. 2000); United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989). The Third Circuit has enunciated the following framework for coram nobis review:
Use of the writ is appropriate to correct errors for which there was no remedy available at the time of trial and where "sound reasons" exist for failing to seek relief earlier. "Only where there are errors of fact of `the most fundamental kind, that is, such as to render the proceeding itself irregular and invalid', [sic] can redress be had." The error must go to the jurisdiction of the trial court, thus rendering the trial itself invalid. An error which could be remedied by a new trial, such as an error in jury instructions, does not normally come within the writ. Earlier proceedings are presumptively correct and the petitioner bears the burden to show otherwise.
Coram nobis is an extraordinary remedy, and a court's jurisdiction to grant relief is of limited scope. "The interest in finality of judgments dictates that the standard for a successful collateral attack on a conviction be more stringent than the standard applicable on a direct appeal." It is even more stringent than that on a petitioner seeking habeas corpus relief under § 2255.Stoneman, 870 F.2d at 106 (internal citations omitted). The Supreme Court has further noted that coram nobis relief should be granted only in rare instances: "it was traditionally available only to bring before the court factual errors material to the validity and regularity of the legal proceeding itself, such as the defendant's being under age or having died before the verdict." Carlisle, 517 U.S. at 429 (internal quotation omitted).
"The ancient writ of audita querela was used to attack a judgment that was correct when it was rendered but later became incorrect as a result some legal defense arising after it was issued." United States v. Jones, 534 F. Supp 2d 465, 468 (D. Del. 2008). The Third Circuit has recognized, albeit in an unreported decision, that such a writ exists in federal jurisprudence: "the writ is available only where the petitioner raises a (1) valid legal objection; (2) to a judgment that arises after that judgment is entered; and (3) that is not redressable by some other means." Muirhead v. Attorney General, 262 F. App'x 473, 474 (3d Cir. 2008) (unreported). In finding that a petition meritsaudita querela relief, a Court may not use the statutory limits imposed by Congress upon habeas relief as the basis for finding that the petitioner has no other means of redress. Hazard v. Samuels, 206 F. App'x 234, 236 (3d Cir. 2006) (unreported);United States v. Paster, 190 F. App'x 138, 139 (3d Cir. 2006) (unreported). Gaps in available relief, furthermore, do not exist where a defendant submitted his arguments to the court in a previous motion and was denied. United States v. Enigwe, No. 08-797, 2008 WL 623831, at *6 (E.D. Pa. Mar. 6, 2008).
A. Due Process Challenge Under Heller
Zuckerman argues that his conviction is invalid under District of Columbia v. Heller, because the second indictment was only filed after he attempted to purchase firearms. 127 S. Ct. 2783 (2008); Pet. at 2. This argument is unavailing. Heller teaches that the Second Amendment describes an individual right to possess firearms. 127 S. Ct. 2797-98. As noted by the Government, however, the opinion in Heller does not disturb all limitations on obtaining firearms: the Supreme Court described a limited right, "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 127 S. Ct. at 2816; Gov't Answer at 16. In fact, Heller sets forth a nonexhaustive list of "presumptively lawful regulatory measures:"
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.127 S. Ct. at 2816-17, n. 26. The record demonstrates that at the time Zuckerman was attempting to obtain a firearm, he had already mailed his threat and been found incompetent to stand trial. When viewed through the lens of Heller, the decision to resume the prosecution of Zuckerman because he attempted to purchase a firearm is fully within the public protection policy goals of the limitations Heller recognizes, such as that weapons can be obtained for improper purposes, borne in improper places, and sought by individuals who would represent a threat to society if armed. 127 S. Ct. at 2816-17. Zuckerman's argument, therefore, is not supported by the Supreme Court's opinion, and his request for relief based on Heller is denied with prejudice.
B. Change of Venue at Trial and Appeal
In his trial change of venue claim, Zuckerman asserts that he should have been entitled to a change of venue because the target of his threat was a judge in the same district in which his trial was held. (Pet. at 2-3.) In a related claim, Zuckerman argues that he was entitled to an appellate panel composed of judges from another circuit on appeal, because the target of his threat had occasionally participated in sittings of the Third Circuit. (Id. at 3.)
1. Trial Venue
Federal Rule of Criminal Procedure 21 provides a method for a defendant to seek a change of venue prior to trial. Fed.R.Crim.P. 21(a). As Rule 21 existed in substantially its present form prior to Zuckerman's trial, a procedural avenue existed for him to receive a change of venue at that time. Id. As such a remedy existed at the time of trial, Zuckerman's change of venue claim is not within the scope of coram nobis relief. Stoneman, 870 F.2d at 106 ("Use of the writ is appropriate to correct errors for which there was no remedy available at the time of trial and where "sound reasons" exist for failing to seek relief earlier.").
Similarly, Zuckerman fails to argue that some legal defense related to trial venue now exists that did not exist at the time of his own trial, the basis for audita querela relief. Jones, 534 F. Supp 2d at 468. The sole case Zuckerman calls the Court's attention to is Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995). In Nichols, the Court of Appeals for the Tenth Circuit found that a mandatory recusal was appropriate based on the egregious nature of the facts presented by one of the Oklahoma City bombing defendants, where the judge assigned to the case might well have been killed had be been at his desk. Nichols v. Alley, 71 F.3d at 350, 352. Nichols presents a situation far different from the facts underyling this petition: rather than a threat to a single judge, the defendant in Nichols had been accused of participating in the actual bombing of a courthouse that resulted in the loss of 169 lives, and was accused of damaging the assigned judge's courtroom and injuring his staff. Id. at 352. The factual dissimilarity of Nichols makes it easily distinguishable from the instant context, and Zuckerman therefore cannot meet the requirement for an audita querela writ that an intervening legal objection to the judgment has arisen, and his request for relief based on trial venue is dismissed with prejudice.
2. Appellate Panel and Venue
In his appellate panel claim, Zuckerman seeks to have this Court find that he was entitled to a panel composed of judges who were not from the Third Circuit. (Pet. at 3.) In support of this claim, he cites to Matter of Skupniewitz, 73 F.3d 702 (7th Cir. 1996). Skupniewitz posed a unique problem: a litigant had sued the Seventh Circuit, the Seventh Circuit sought mandamus from itself, and all of the judges of that court recused themselves. 73 F.3d at 704-05. The Chief Justice of the Supreme Court then created a panel of other circuit judges to hear the petition. Id. at 705. Skupniewitz, however, does not address any issue germane to Zuckerman's petition. It addresses instead the complex issue of a district court's remand of a case in which it concluded it was forbidden from receiving communications from the plaintiff.Id. at 704. It is, therefore, entirely distinguishable from the instant petition. Furthermore, as Skupniewitz announces no new legal proposition that could form the basis for audita querela relief, it is unable to support Zuckerman's petition for same.Jones, 534 F. Supp 2d at 468.
The Government, in its answer, notes that Zuckerman alleges no specific facts pertaining to any bias or prejudice against Zuckerman. (Gov't Answer at 17-18.) Coram nobis relief requires Zuckerman to show bias or prejudice sufficient to demonstrate a fundamental failure in the prior proceeding. Stoneman, 870 F.2d at 106. The vague accusation set forth in the petition, that appellate judges were rendered incapable of hearing an appeal because they occasionally worked with the target of Zuckerman's threat, requires a more substantive showing than the record discloses. Accordingly, Zuckerman's request for coram nobis relief is denied with prejudice.
C. Ineffective Assistance of Counsel
Zuckerman makes two claims regarding ineffective assistance of counsel. He first alleges that his Criminal Justice Act counsel, Michael J. Pedicini, refused to serve Zuckerman's witness subpoenas and employed a strategy of not presenting witnesses at trial. (Pet. at 3.) The second allegation of ineffective assistance concerns the choices of Peter J. Ryan regarding the use of psychiatric experts. (Id. at 4.)
An ineffective assistance of counsel claim in a habeas petition requires first that trial counsel performed poorly enough to fall beneath an objective standard of reasonableness, and second that a reasonable probability exists that the ineffectiveness of trial counsel prejudiced the result. United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989).
With respect to Mr. Pedicini, Zuckerman makes no allegation that he was prejudiced by the tactical decision not to subpoena or utilize witnesses. To demonstrate prejudice through ineffective assistance of counsel, Zuckerman's claim "must be made based on the potential witness's testimony to the habeas court." Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006). Zuckerman has not provided or summarized any testimony for this Court. Although Zuckerman complains about his counsel's decision not to seek witness testimony, he cannot demonstrate the necessary prejudice required for habeas relief, let alone under one of the extraordinary writs through which he seeks relief. Zuckerman's first claim for ineffective assistance is therefore denied with prejudice.
Similarly, Zuckerman's other allegation of ineffective assistance of counsel is without merit. Counsel has "wide latitude" in making decisions about strategic or tactical decisions, including the selection of psychiatric experts.Affinito v. Hendricks, 366 F.3d 252, 258-59 (3d Cir. 2004). Selection of a psychiatrist with less experience, and a later decision not to seek a second opinion, are well within the range of tactical decisions trial counsel may make without being ineffective under Strickland v. Washington, 466 U.S. 668, 689 (1984); Affinito, 366 F.3d at 259. Zuckerman has presented no reason for this Court to disturb the presumption that Mr. Ryan's actions "might be considered sound trial strategy" under the circumstances. Strickland, 466 U.S. at 689. Zuckerman's second claim concerning ineffective assistance is, therefore, also denied with prejudice.
D. Jury Instructions
Zuckerman alleges in his jury instruction claim that he was entitled to an instruction that exaggeration is a defense to a mail threat charge. (Pet. at 3.) Zuckerman is correct that courts have, in some instances, given an instruction that includes the word "exaggeration." See, e.g., United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008); United States v. Zavrel, 384 F.3d 130, 136 (3d Cir. 2004); United States v. Aman, 31 F.3d 550, 552 (7th Cir. 1994). The word has been used to describe idle chat or a joke that lacks the seriousness of a true threat. Parr, 545 F.3d at 497; Zavrel, 384 F.3d at 136. It is not a defense to a mail threat charge; it is merely an illustrative word in certain jury instructions. In the Fifth Circuit, specifically mentioned by Zuckerman, the word "exaggeration" is used in precisely this manner. United States v. Daughenbaugh, 49 F.3d 171, 173 n. 2 (5th Cir. 1995).
The jury charge Zuckerman received did not contain the word "exaggeration." It read as follows:
A "threat" under this statute is a statement expressing an intention to injure another person and must be a serious or "true threat" as distinguished from words uttered as mere political argument, talk or jest.
The Government must prove beyond a reasonable doubt that the defendant knowingly and wilfully made a statement in such a way and under such circumstances that a reasonable person would foresee that the statement would be intercepted by persons hearing it or reading it as a serious expression of an intention to inflict bodily harm upon another person.
(Gov't App. III, G00114.) This Court finds that the distinction between "political argument, talk or jest" and the Zavrel instruction, "idle or careless talk, exaggeration or something said in a joking manner," to be a distinction without a difference. Zuckerman makes no argument as to how his threat constituted exaggeration, and this Court finds little or no substantive difference between the use of the word "exaggeration" and the language used in the instructions given to Zuckerman's jury in light of the facts of his case and the language of 18 U.S.C. § 876. United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) ("In reviewing the adequacy of any particular jury instruction, we consider the challenged instruction in the context of both the entire charge and the evidence in the case."). Zuckerman, therefore, fails to meet the difficult burden of convincing this Court to issue either of the writs he seeks with respect to his jury instructions, and therefore that claim is denied with prejudice.