Zuckerman v. United States

• Decision Date: 25 September 2020
• Docket Number: Civ. No. 17-7269 (MCA)
• Parties: RICHARD PAUL ZUCKERMAN, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. District Court — District of New Jersey

RICHARD PAUL ZUCKERMAN, Plaintiff, v. UNITED STATES, Defendant.

Civ. No. 17-7269 (MCA)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

September 25, 2020

OPINION

MADELINE COX ARLEO, U.S.D.J.

I. INTRODUCTION

Pro se Plaintiff/Petitioner Richard Paul Zuckerman ("Petitioner or "Zuckerman")¹ is proceeding with is a complaint/petition seeking a writ of audita querela or coram nobis. For the following reasons, the complaint/petition is denied.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In 1987, Petitioner filed a civil lawsuit under 42 U.S.C. § 1983 seeking a judgment that certain New Jersey laws relating to the issuance of permits for firearms were unconstitutional, as well as expungement of a prior state disorderly persons conviction. (See Crim. No. 91-108, ECF No. 10-1 at ¶ 1). The case was assigned to the Honorable Dickinson R. Debevoise. (See id.). Judge Debevoise granted the State of New Jersey's motion for summary judgment. (See id.). Thereafter, Petitioner sent Judge Debevoise a threatening letter stating that he would do somethings out of "Faces of Death"² if the Court kept "fucking [Petitioner] around." (See id. at ¶ 2). Petitioner was subsequently indicted for mailing a threatening communication to a federal judge, in violation of 18 U.S.C. §§ 876 and 2. See United States v. Zuckerman, 367 F. App'x 291, 292 (3d Cir. 2009). Zuckerman was found incompetent to stand trial. See id. The indictment was dismissed without prejudice at the government's request. See id.

Approximately one year later, the Federal Bureau of Investigation ("FBI") and the United States Attorney's Office learned that Petitioner was attempting to buy guns in Florida and bring them back to New Jersey. See id. Petitioner was then re-indicted on the original charge, namely mailing a threatening communication to a federal judge. See id. Petitioner was convicted at trial. See id. The District Court initially sentenced him to a term of hospitalization after finding Petitioner required psychiatric care. See id. However, once the medical facility determined Petitioner no longer needed treatment, Zuckerman was sentenced to time served and a three-year period of supervised release. See id. n.1.

Petitioner appealed to the Third Circuit, claiming, among other things, several of the same claims raised in this action, namely violation of the Speedy Trial Act, improper jury instructions and that the second indictment impermissibly punished him for exercising his Second Amendment rights. (See Crim. No. 91-108 ECF 10-1 at ¶ 13). The Third Circuit affirmed the judgment of conviction on direct appeal. See United States v. Zuckerman, 981 F.2d 1249 (3d Cir. 1992).

In 1992 and 1994, Petitioner filed § 2255 motions, alleging ineffective assistance of counsel. See Zuckerman, 367 F. App'x at 293. Both were denied by the District Court and theThird Circuit affirmed. See id.; see also Zuckerman v. United States, 8 F.3d 815 (3d Cir. 1993); Zuckerman v. United States, 39 F.3d 1174 (3d Cir. 1994).

In 2008, Petitioner sought relief again, this time filing a petition for writ of coram nobis or audita querela. (See Crim. No. 91-108 ECF 1). In this 2008 petition, he raised the following issues:

In light of District of Columbia v. Heller . . . his conviction violated the Due Process clause of the Fifth Amendment because the decision to prosecute the second indictment was based on his attempts to purchase firearms; (B) he should have been granted a change of venue; (C) he was entitled to an appellate panel from another circuit on direct appeal; (D) the appointed advisory defense attorney provided ineffective assistance of counsel; I the Third Circuit engaged in unlawful retaliation by entering a judgment order on direct appeal rather than hearing oral argument; (F) the trial court erred in failing to advise the jury that exaggeration is a defense to a mail threat charge; (G) the Speedy Trial Act was violated; (H) the court-appointed criminal defense attorney provided ineffective assistance in obtaining psychiatric evaluation; (I) the trial judge undermined his right to a jury trial by telling the jury it was required to follow the trial judge's instructions; and (J) the court should liberally relitigate issues that had earlier been asserted and denied.

See Zuckerman, 367 F. App'x at 292-93.

Finding that these issues had already been litigated, Judge Linares denied with prejudice Petitioner's claims relating to the Speedy Trial Act, ineffective assistance of counsel, and the broad request to relitigate previously denied claims, items (G), (H), and (J), without requiring any response from the Government. See id. at 293. After the Government filed its response to Petitioner's remaining claims, Judge Linares denied his remaining requests for relief. See id.

The Third Circuit affirmed. It found all but one of Petitioner's claims could have been raised earlier noting: "[Zuckerman] pursued a direct appeal, and has had two post-conviction chances to raise challenges to his conviction and sentence." Id. Therefore, those claims werenot cognizable under coram nobis or audita querela. The Third Circuit found that the only claim Petitioner could not have raised earlier was his discriminatory prosecution argument based on Heller, because Heller was decided in 2008. See id. at 294. Regardless, the Third Circuit found that it was unnecessary to consider the merits of that claim because Petitioner had not shown "that such an extraordinary remedy" in the form of coram nobis or audita querela "is necessary; i.e., that he was convicted for conduct that was not criminal . . . or that an error affects the very jurisdiction of the trial court." Id. The Third Circuit concluded, "[m]ailing a threatening communication is a crime, and Zuckerman makes no claim that the District Court lacked jurisdiction to try the case against him." Id.

Petitioner filed this action in September 2017. (See ECF 1). Petitioner asserts five "separate and distinct" claims. In Petitioner's own words, his claims are as follows:

1. Case law rendered after the conviction and direct appeal, creating new law requiring enforcement of the ten-day-transportation-rule during mental competency proceedings; case law stating the reason for pre-trial speedy act delay must be explained, not a conclusory "in the interests of justice." ("Claim I")

2. [1] New case law spelling it out in black and white the Second Amendment of the U.S. Constitution is indeed intended to safeguard an individual person's right to keep and bear arms to purchase a firearm. ("Claim IIa")

[2] Johnson and Welch struck down the same section of 18 U.S.C. Section 924(e)(2)(B)(ii), which is worded similar to the reasons the federal prosecutors expressed for instituting this second indictment. The only reason Trial Judge Politan stated for denying the undersigned's pro se pre-trial motion to dismiss the second indictment basedon bad faith prosecution (back in 1991) was failure of the U.S. Supreme Court to say the Second Amendment protects an individual person. ("Claim IIb")

[3] The undersigned only learned within the past month from the website biography page of the Chief Justice of New Jersey Supreme Court that Stuart Jeff Rabner had previously worked as a law clerk for and became "good friends" with Hon. Dickinson R. Debevoise (deceased) D.N.J. (Newark). Stuart Jeff Rabner was the trial prosecutor in the first indictment and was also involved in the second indictment, involving a mail threat upon Judge Debevoise (deceased). The undersigned asserts this constitutes a conflict of interest of a constitutional dimension which contributes to the undersigned's aforementioned allegations of bad faith prosecution, especially from the comments made by victim Judge Debevoise in 2014, that he become [sic] "good friends" and mentored Mr. Rabner, PCA 81, PCA 82. The undersigned askes this court to require prosecutors henceforth to include in pre-trial discovery all possible conflicts of interests of prosecutors. ("Claim IIc")

3. Indiana v. Edwards, 554 U.S. 164 (2008), establishing a new constitutional standard for deciding whether a criminal defendant should be granted permission to proceed thru trial in pro se. The criminal defendant must now have more mental competence to proceed thru trial in pro se, which now puts the burden on the trial court to order a psychiatric exam and hold any evidentiary hearing with expert witness testimony on whether the defendant with a "long history of mental illness" has this higher amount of mental competence to proceed thru trial in pro se. Trial Court Judge Politan failed to order a psychiatric exam, a psychiatric expert, or hold an evidentiary hearing. Court-appointed stand-by counsel did not even show up for trial. Trial Judge Politan denied theundersigned's request to delay the trial until stand-by counsel showed up for trial, forced the undersigned to proceed thru trial without stand-by counsel present. The undersigned was blocked from law library and access to legal materials, and was shackled during trial. It wasn't until right after the undersigned was convicted did Trial Judge Politan order a psychiatric exam, afterwards psychiatric treatment, which was for the undersigned to be sentenced, not whether the undersigned was mentally competent to proceed in pro se through trial. ("Claim III")

4. Recent case law establishing new federal constitutional rights to be free from being shackled during trial, Deck v. Missouri, while a courtroom security guard stands closely behind the shackled criminal defendant in the presence of the jury, bobbing his head to the same side and practically directly over the undersigned's head in whatever direction the undersigned moved; and recent 9^th circuit en banc case prohibiting shackling of pre-trial criminal defendants. ("Claim IV")

5. Recent case law, Snyder v. Phelps and Matal v. Tam, which would further support my request for a jury instruction on the permissible language towards public officials, which

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