Opinion
09 Civ. 10048 (PAC)
09-04-2018
ERIC A. KLEIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER TO SHOW CAUSE :
This is the latest in a series of rulings addressing pro se litigant Eric A. Klein's endless wave of frivolous filings in this Court. Klein was convicted of wire fraud and conspiring to commit wire fraud on July 8, 2005, and he was sentenced to a term of 51 months imprisonment and three year's supervised release on November 2, 2005. Since his sentencing, Klein has filed numerous meritless appeals and dozens of baseless motions relating to his conviction. In 2013, the Second Circuit noted that Klein had "instituted twenty-five separate matters relating to his 2005 criminal conviction, his attorney's performance during his criminal proceedings, or the 28 U.S.C. § 2255 proceedings challenging his conviction and sentence." Klein v. United States, No. 12-4898, Dkt. 60 (2d Cir. Sept. 11, 2013). At that time, the Second Circuit warned him that he had "repeatedly exceeded the bounds of tolerable litigation conduct" and that "the further filing of frivolous and/or vexatious motions or appeals . . . will result in the imposition of sanctions, including leave-to-file sanctions." Id. On February 5, 2018, the Court repeated this warning to Klein in an opinion denying his most recent request for coram nobis relief. Opinion and Order, Dkt. 116, at 3.
In spite of these warnings, and even though he has already completed his criminal sentence, Klein continues his flurry of frivolous filings. In the past 7 months alone, Klein has filed the following documents: (1) a motion to terminate the representation of his counsel in his criminal case and to reconsider the Court's prior coram nobis opinion, Dkt. 118; (2) a motion to "process overlooked admissions in the record," Dkt. 120; (3) a "supplemental affirmation in support of pending motions," Dkt. 121; (4) a "third supplemental affirmation summarizing at least seven areas of ineffective assistance of counsel," Dkt. 123; (5) a motion to "vacate verdict/judgment," Dkt. 124; and (6) a letter requesting appointment of counsel, Dkt. 125. Klein separately faxed three letters directly to the Court. His March 27, 2018 letter requests a pre-motion conference; his July 5, 2018 letter requests a "breakthrough on [the] elemental issue of whether [he] was Pro Se after Arraignment" because it was his birthday; and his August 11, 2018 letter offers to draft findings of fact for the Court. Klein also submitted a letter to Chief Judge McMahon on February 9, 2018, requesting that she take control of this case. Dkt. 117.
The Court denies as frivolous the three motions included in Klein's wave of filings. His first motion requests that the Court formally terminate the representation of the law firm that represented him at trial, Talkin Muccigrosso & Roberts ("TMR"). See Dkt. 118. Klein offers no reason for this belated request other than to express his dissatisfaction with TMR. In any event, this same request was granted and TMR's representation terminated on May 3, 2007. See No. 03-cr-813 Dkt. 77. Although Klein claims that TMR later filed a notice of appearance on December 17, 2007, this notice was dated January 3, 2005, and any later entry of the notice on the docket is nothing more than a clerical error and has no practical effect. See No. 03-cr-813 Dkt. 123. Klein also requests that the Court reconsider its coram nobis opinion. There, the Court held that a previous court decision, CFTC v. Probber Int'l Equities Corp., 504 F. Supp. 1154 (S.D.N.Y. 1981), was publicly available and had only marginal relevance in supporting Klein's argument that his co-defendant, Lloyd Probber, tricked Klein into unwittingly aiding his fraudulent scheme. Opinion and Order, Dkt. 116, at 3. Thus, the Court concluded that the Government did not suppress the CFTC decision, Klein's counsel was not ineffective for failing to discover it, and Klein had no excuse for failing to mention it in any of his previous motions for relief. Id. Klein's motion to reconsider largely reiterates his previous argument that the CFTC decision would have been important evidence of Probber's ability to trick others, including accountants and lawyers. This rehashing of arguments fails to convince the Court to reconsider its previous holding that nothing about CFTC justifies vacating Klein's conviction.
Klein's second and third motions revolve around his argument that his Sixth Amendment right to counsel was violated because he did not have a lawyer for a period of time following arraignment. See Dkt. 120. The Second Circuit, however, rejected this very same argument on direct appeal in 2008, and Judge Jones rejected it as procedurally barred in Klein's habeas petition in 2012. United States v. Klein, 297 F. App'x 19, 20 (2d Cir. 2008); Klein v. United States, No. 09-cv-10048, 2012 WL 5177493, at *2-3 (S.D.N.Y. Oct. 17, 2012). Klein cannot obtain relief by repeating the same argument in successive court filings.
Klein may disagree with the results the justice system rendered in his case, but that is no excuse for harassing the Court with letters and filings, repeating the same arguments ad nauseum, and slowing the administration of justice for other litigants by forcing the Court to address each of his frivolous motions. All of his arguments have been considered and rejected, and there is no basis for him to proceed further. Klein surely knows this, as he is a former lawyer. Yet, absent further action, the Court is confident that Klein will continue his incessant war of attrition with the court system.
Thus, as previously warned, the Court will now consider imposing leave-to-file sanctions on Klein. Such sanctions are appropriate under the Court's inherent powers. See Shafii v. British Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996) ("A district court may, in its discretion, impose sanctions against litigants who abuse the judicial process. The filing of repetitive and frivolous suits constitutes the type of abuse for which an injunction forbidding further litigation may be an appropriate sanction." (internal citations omitted)). "The procedure for imposing leave-to-file sanctions involves three stages: (1) the court notifies the litigant that future frivolous filings might result in sanctions; (2) if the litigant continues this behavior, the court orders the litigant to show cause as to why a leave-to-file sanction order should not issue; and (3) if the litigant's response does not show why sanctions are not appropriate, the court issues a sanctions order." Viola v. United States, 307 F. App'x 539, 539 (2d Cir. 2009) (summary order).
As Klein has already been warned that future frivolous filings might result in sanctions, the Court now ORDERS Klein to show cause, within 30 days of the date of this order, why the Court should not issue an order enjoining him from making any additional filings related to his 2005 conviction without leave of the Court, as a sanction for making repetitive and frivolous filings in these proceedings. Dated: New York, New York
September 4, 2018
SO ORDERED
/s/_________
PAUL A. CROTTY
United States District Judge Copy Mailed To:
Eric A. Klein
200 Knickerbocker Road
Demarest, New Jersey 07627