United States v. Sash

09-2079-cr
United States v. Sash
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22 nd day of April, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RALPH K. WINTER,
9 JOHN M. WALKER, JR.,
10 Circuit Judges.
11
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13 United States of America,
14 Appellee,
15
16 -v.- 09-2079-cr
17
18 Eliot Sash, also known as Steven Sash,
19 also known as Eliot Sashe,
20 Defendant-Appellant.
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22
23 FOR APPELLANT: Malvina Nathanson, New York, NY.
24
25 FOR APPELLEE: Harry A. Chernoff, Daniel A. Braun,
26 Assistant United States Attorneys, of
27 counsel, for Preet Bharara, United States
28 Attorney for the Southern District of New
29 York.
1
1 Appeal from a judgment of the United States District
2 Court for the Southern District of New York (Kaplan, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
4 AND DECREED that the judgment of the district court be
5 AFFIRMED.
6 Eliot Sash appeals from an April 24, 2009 order of the
7 United States District Court for the Southern District of
8 New York (Kaplan, J.), inter alia denying his petition for a
9 writ of error coram nobis. In 2003, Sash pleaded guilty to
10 various federal charges arising out of his possession and
11 distribution of counterfeit New York Police Department
12 badges. Having served his sentence, he now collaterally
13 challenges his conviction, principally on the ground that he
14 was afforded ineffective assistance of counsel. The
15 district court denied his challenge without an evidentiary
16 hearing. We otherwise assume the parties’ familiarity with
17 the underlying facts, the case’s procedural history, and the
18 issues presented for review. We review the district court’s
19 decision for abuse of discretion. E.g. Porcelli v. United
20 States, 404 F.3d 157, 158 (2d Cir. 2005).
21 “A petitioner seeking [coram nobis] relief must
22 demonstrate that 1) there are circumstances compelling such
23 action to achieve justice, 2) sound reasons exist for
2
1 failure to seek appropriate earlier relief, and 3) the
2 petitioner continues to suffer legal consequences from his
3 conviction that may be remedied by granting of the writ.”
4 Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996)
5 (citations, brackets, and internal quotation marks omitted).
6 We conclude that Sash has failed to demonstrate that “sound
7 reasons exist for failure to seek appropriate earlier
8 relief,” and we therefore need not consider the other two
9 requisites. Fifty-one months elapsed between Sash’s
10 conviction and sentencing, on January 23, 2004, SA 151, and
11 his petition, on May 1, 2008, DA 22. Cf. Foont, 93 F.3d at12 78, 80 (finding that “nearly five years[’]” delay between
13 time petitioner “knew or should have known . . . of the
14 facts underlying his [coram nobis] claim” and his petition
15 is too much absent “sound reasons for his delay”). And Sash
16 offers no “sound reason” for this delay. He invokes
17 ineffective assistance of counsel; but he could have
18 asserted his claim pro se, as he has the present petition.
19 There is no right to counsel past trial and direct appeal,
20 so proceeding pro se on collateral challenge is expected.
21 Moreover, Sash is certainly familiar with the process for
22 doing so: He is an active pro se litigant, having filed
23 (among many other actions) at least three habeas petitions
3
1 and one petition coram nobis in the last ten years, see
2 Petition for Writ of Habeas Corpus, Sash v. Laird, No. 06
3 Civ. 6052(LB) (E.D.N.Y. Nov. 7, 2006); Petition for Writ of
4 Habeas Corpus, Sash v. Zenk, No. 05 Civ. 3543(LAK)(THK)
5 (S.D.N.Y. Apr. 6, 2005); Petition for Writ of Habeas Corpus,
6 Sash v. Zenk, No. 04 Civ. 2503(ENV) (E.D.N.Y. June 15,
7 2004); Petition for Writ of Error Coram Nobis, Sash v. Zenk,
8 No. 03 Civ. 1321(TJM)(GJD) (N.D.N.Y. Oct. 30, 2003).
9 Similarly unavailing is Sash’s argument that he delayed
10 filing the instant petition because he was preoccupied with
11 other proceedings. As a person designated a “frequent
12 filer,” he can hardly claim lack of time to litigate. See
13 Sash v. United States, No. 09 Civ. 450(DC), 2009 WL 3007379,
14 at *6 (S.D.N.Y. Sept. 22, 2009). Since 2004, he has “been
15 the plaintiff in at least twenty-four different cases . . .
16 the vast majority of which have been dismissed.” Id. And
17 “[w]hen his cases have been dismissed, Sash has regularly
18 appealed, despite district courts’ express finding that an
19 appeal would not be in good faith.” Id. at *7. We find no
20 abuse of discretion here. Cf. United States v. Keogh, 391
21 F.2d 138, 142, 149 (2d Cir. 1968) (remanding for an
22 evidentiary hearing where “the record is not sufficient to
4
1 tell us how the case should be decided,” and affirming
2 dismissal without a hearing elsewhere).
3 Finding no merit in Sash’s remaining arguments, we
4 hereby AFFIRM the judgment of the district court.
5
6
7 FOR THE COURT:
8 CATHERINE O’HAGAN WOLFE, CLERK
9
5