     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
12       - - - - - - - - - - - - - - - - - - - -X
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.
21       - - - - - - - - - - - - - - - - - - - -X
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


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 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 at

12   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


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 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




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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




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