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United States Court of Appeals, Second Circuit.

ERIC A. KLEIN, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.


Decided: June 23, 2017

PRESENT: RALPH K. WINTER, GUIDO CALABRESI, DENNY CHIN, Circuit Judges. 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.

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 Klein's 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 parties' familiarity with the underlying facts, procedural history, and issues on appeal.

We review the district court's decision denying a writ of error coram nobis for abuse of discretion. Foont v. Unites States, 93 F.3d 76, 79 (2d Cir. 1996). “A writ of error coram nobis is an 'extraordinary remedy,' typically available only when habeas relief is unwarranted because the petitioner is no longer in custody.” Kovacs v. United States, 744 F.3d 44, 49 (2d Cir. 2014) (internal citation omitted). To obtain coram nobis relief, a petitioner must show “1) 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.” Id. (quoting Foont, 93 F.3d at 79). Each of Klein's claims is either procedurally barred or wholly lacking in merit or both, and, therefore, the district court did not abuse its discretion in denying Klein's coram nobis petitions.

We have considered Klein's 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 Klein's 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 attorney's 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 Court's adverse rulings, moving frequently for reconsideration and rehearing of this Court's orders and for recall of this Court's mandates. Finally, we note that, in an order we affirmed on Appellant's direct appeal, the district court barred Appellant from filing any further motions in his criminal case without first obtaining the court's permission. See United States v. Klein, No. 05–6018, 297 Fed. App'x 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 attorney's performance during the course of the underlying criminal 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 “courts may resort to restrictive measures ․ [with respect to] litigants who have abused their litigation opportunities,” including “subjecting a vexatious litigant to a 'leave of court' requirement with respect to future filings”); Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986).

(Docket No. 12–4898, docket entry 60). Despite the district court's 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.


Catherine O'Hagan Wolfe, Clerk

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