2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-26-2009

USA v. Richard Zuckerman

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2145

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ALD-012 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2145

___________

UNITED STATES OF AMERICA

v.

RICHARD PAUL ZUCKERMAN,

 Appellant

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Crim. No. 91-CR-00108)

District Judge: Honorable Jose L. Linares

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 16, 2009

Before: SLOVITER, AMBRO and SMITH, Circuit Judges

(Opinion filed: October 26, 2009 )

_________

OPINION

_________

PER CURIAM

Richard Paul Zuckerman appeals from an order of the United States District Court

for the District of New Jersey, which denied his petition for a writ of error coram nobis or
 After treatment, the Federal Correctional Institution at Butner decided that 1

Zuckerman was no longer in need of treatment, and he was returned to the District Court

for sentencing. On February 22, 1993, the District Court sentenced Zuckerman to time

served, and placed him on supervised release for three years. Answer, Dist. Ct. dkt. #6, at

5-6.

2

audita querela. Because the appeal raises no substantial question, we will affirm the

District Court’s order.

As we write primarily for the parties, we recount only those facts necessary to an

understanding of this decision. Zuckerman was indicted in 1989, charged with mailing a

threatening communication to a federal judge (sitting in New Jersey), in violation of 18

U.S.C. §§ 876 and 2. That indictment was eventually dismissed without prejudice to the

United States. About one year later, the Federal Bureau of Investigation and the United

States Attorney’s Office learned that Zuckerman was attempting to buy guns in Florida

and return with them to New Jersey. The prosecutor returned to the grand jury and

obtained a second indictment charging Zuckerman with the same offense charged by the

first indictment. Zuckerman proceeded to trial and was found guilty. As the Court found

that Zuckerman was in need of psychiatric care, Zuckerman was originally given a

provisional sentence of hospitalization in a suitable facility pursuant to 18 U.S.C. § 4244.1

 Zuckerman was unsuccessful on direct appeal.

Zuckerman filed a motion for relief pursuant to 28 U.S.C. § 2255 in 1992, raising

claims concerning ineffective assistance of counsel. The motion was denied, and this

Court affirmed. Zuckerman filed a second § 2255 motion in 1994, raising additional
3

claims concerning ineffective assistance of counsel. The District Court denied relief and

this Court affirmed.

Over a decade later, Zuckerman filed the petition at issue here. Zuckerman sought

to raise the following issues: (A) in light of District of Columbia v. Heller, 128 S. Ct.

2783 (2008), 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; (E) 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 that it was required to follow the trial court’s instructions; and (J) the court

should liberally relitigate issues that had earlier been asserted and denied.

The District Court entered an order and opinion on October 21, 2008, denying with

prejudice Zuckerman’s request to relitigate issues, and his already litigated claims (issues

“G,” “H,” and “J”). The Court also denied claims “E” and “I” because they were without

merit. The Court required Respondents to answer the remaining claims.
 Although Zuckerman is not “in custody,” if we found that extraordinary relief 2

pursuant to a writ of error coram nobis or a writ of audita querela were warranted, we

assume Zuckerman could show continuing consequences from his conviction. See

Torzala v. United States, 545 F.3d 517, 521 (7 Cir. 2008) (holding that court had th

jurisdiction to consider appeal from unsuccessful § 2255 movant who had been released

4

After considering the answer and Zuckerman’s reply and supplemental replies, the

District Court denied the remaining claims. Zuckerman appealed, and was informed that

the Court would consider summary action. Zuckerman filed a brief in response.

Our review of the District Court’s legal conclusions is plenary, and we apply a

clearly erroneous standard to its factual findings. Okereke v. United States, 307 F.3d 117,

119-20 (3d Cir. 2002). We may affirm on grounds different than those used by the district

court in reaching its decision. Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir. 2001).

The writ of error coram nobis and the writ of audita querela are available in

criminal cases to the extent they fills in gaps in the current system of post-conviction

relief. Massey v. United States, 581 F.3d 172 (3d Cir. 2009) (audita querela); United

States v. Baptiste, 223 F.3d 188 (3d Cir. 2000) (coram nobis). We recently reiterated that

a motion filed pursuant to 28 U.S.C. § 2255 is the presumptive means of challenging a

federal conviction, and in the rare instance where a § 2255 motion is “inadequate or

ineffective,” a federal prisoner may resort to a writ of habeas corpus filed pursuant to 28

U.S.C. § 2241. Massey, 581 F.3d at n.1. Here, however, because Zuckerman is no longer

in custody, he could no longer file a § 2255 motion (even with this Court’s permission),

nor could he file a § 2241 petition. We have noted, “[w]ere no other avenue of judicial 2
from custody because of his inability to possess firearms lawfully).

5

review available for a party who claims that s/he is factually or legally innocent as a result

of a previously unavailable statutory interpretation, we would be faced with a thorny

constitutional issue.” In re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997). 

Such is not the case here, however. Cf. United States v. Richter, 510 F.3d 103,

104 (2d Cir. 2007) (finding writ of audita querela does not lie to raise claim under United

States v. Booker, 543 U.S. 220 (2005)). Zuckerman cannot show that § 2255 is

“inadequate or ineffective” to raise his claims lettered “B” through “J.” He pursued a

direct appeal, and has had two post-conviction chances to raise challenges to his

conviction and sentence. Massey, 581 F.3d at 174 (petitioner may not resort to audita

querela simply because he cannot satisfy requirements of Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”)); Baptiste, 223 F.3d at 189-90 (petitioner may not

resort to coram nobis simply because he cannot satisfy requirements of AEDPA). 

Zuckerman’s only claim that could not have been raised in an earlier motion or on

direct appeal is his claim based on Heller, because Heller was not decided until 2008. We

need not consider, however, whether Zuckerman could proceed by way of coram nobis or

audita querela to pursue his Heller claim, because Zuckerman has not shown that such an

extraordinary remedy is necessary; i.e., that he was convicted for conduct that was not

criminal, see Dorsainvil, 119 F.3d at 248; or that an error affects the very jurisdiction of

the trial court, see United States v. Stoneman, 870 F.2d 102, 106 (3d Cir. 1989). Mailing
 Further, we agree with the District Court that Zuckerman’s Due Process claim is 3

without merit. Heller does not impugn the prosecutor’s motivation for seeking the second

indictment against Zuckerman. See Heller, 128 S. Ct. at 2816-17 & n.26; Dist. Ct. Op. at

5 (Jan. 28, 2009).

 Zuckerman’s motion to expand the record is granted, as the documents he seeks this 4

Court to review are part of the criminal record below.

6

a threatening communication is a crime, and Zuckerman makes no claim that the District

Court lacked jurisdiction to try the case against him.3

For the foregoing reasons, we will affirm the District Court’s judgment.4