16‐1081(L)
Klein v. USA
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 COURTʹS 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 ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 23rd day of June, two thousand seventeen.
PRESENT: RALPH K. WINTER,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges.
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ERIC A. KLEIN,
Petitioner‐Appellant,
16‐1081(L)
v. 16‐1253 (Con)
UNITED STATES OF AMERICA,
Respondent‐Appellee.
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FOR PETITIONER‐APPELLANT: HOWARD D. SIMMONS, ESQ., New York,
New York.
FOR RESPONDENT‐APPELLEE: CHRISTOPHER J. CLORE, Assistant United
States Attorney (Brian R. Blais, Assistant
United States Attorney, on the brief), for Joon H.
Kim, Acting United States Attorney for the
Southern District of New York, New York,
New York.
Consolidated appeals from the United States District Court for the
Southern District of New York (Cote, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the orders of the district court are AFFIRMED.
Petitioner‐appellant Eric A. Klein, represented by counsel, appeals from
the orders of the district court entered February 8, 2016 and March 17, 2016, denying
Kleinʹs motions for reconsideration of the denial of his petitions for a writ of error coram
nobis. On appeal, Klein asserts ten claims of error. We assume the partiesʹ familiarity
with the underlying facts, procedural history, and issues on appeal.
We review the district courtʹs decision denying a writ of error coram nobis
for abuse of discretion. Foont v. Unites States, 93 F.3d 76, 79 (2d Cir. 1996). ʺA writ of
error coram nobis is an ʹextraordinary remedy,ʹ typically available only when habeas
relief is unwarranted because the petitioner is no longer in custody.ʺ Kovacs v. United
States, 744 F.3d 44, 49 (2d Cir. 2014) (internal citation omitted). To obtain coram nobis
relief, a petitioner must show ʺ1) there are circumstances compelling such action to
achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and
3) the petitioner continues to suffer legal consequences from his conviction that may be
remedied by granting of the writ.ʺ Id. (quoting Foont, 93 F.3d at 79). Each of Kleinʹs
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claims is either procedurally barred or wholly lacking in merit or both, and, therefore,
the district court did not abuse its discretion in denying Kleinʹs coram nobis petitions.
. . .
We have considered Kleinʹs remaining arguments and conclude they are
without merit. Accordingly, we AFFIRM the orders of the district court.
We also note that on August 7, 2007, the district court (Sand, J.), barred
Klein from filing any motions without first obtaining permission of the court. See
United States v. Klein, 2007 WL 2274254 (S.D.N.Y. Aug. 7, 2007). Further, on September
11, 2013, in a summary order denying one of Kleinʹs previous appeals, we observed
that:
Appellant is a frequent litigant in this Court, having instituted twenty‐five
separate matters relating to his 2005 criminal conviction, his attorneyʹs
performance during his criminal proceedings, or the 28 U.S.C. § 2255
proceedings challenging his conviction and sentence. We have explicitly
dismissed seven of these cases as frivolous. See U.S.C.A. dkt. Nos. 09‐182,
09‐2202, 09‐3635, 09‐4072, 09‐4587, 10‐427, and 10‐3922. Moreover, in
connection with his various matters in this Court, Appellant has filed
numerous meritless appellate motions, and has been extraordinarily
reluctant to accept this Courtʹs adverse rulings, moving frequently for
reconsideration and rehearing of this Courtʹs orders and for recall of this
Courtʹs mandates. Finally, we note that, in an order we affirmed on
Appellantʹs direct appeal, the district court barred Appellant from filing
any further motions in his criminal case without first obtaining the courtʹs
permission. See United States v. Klein, No. 05‐6018, 297 Fed. Appʹx 19 (2d
Cir. Oct. 15, 2008).
We find that, by engaging in the above practices, Appellant has repeatedly
exceeded the bounds of tolerable litigation conduct. Accordingly,
Appellant is hereby warned that the further filing of frivolous and/or
vexatious motions or appeals in this Court relating to his 2005 conviction,
his attorneyʹs performance during the course of the underlying criminal
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proceedings, or his § 2255 proceedings, will result in the imposition of
sanctions, including leave‐to‐file sanctions. See In re Martin‐Trigona, 9 F.3d
226, 228‐29 (2d Cir. 1993) (recognizing that ʺcourts may resort to restrictive
measures . . . [with respect to] litigants who have abused their litigation
opportunities,ʺ including ʺsubjecting a vexatious litigant to a ʹleave of
courtʹ requirement with respect to future filingsʺ); Safir v. U.S. Lines, Inc.,
792 F.2d 19, 24 (2d Cir. 1986).
(Docket No. 12‐4898, docket entry 60). Despite the district courtʹs sanction and our
earlier warning, Klein and his counsel have continued to file motions in the district
court and motions and appeals in this Court. We remind Klein and his counsel that
Klein may not make any further motions in the district court relating to his 2005
conviction without permission of the district court and that any violations of this order
may subject Klein and his counsel to further sanctions.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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