UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT NEW YORK.
June 17, 1980.
Louis C. OSTRER, Petitioner,
UNITED STATES of America, Respondent.
The opinion of the court was delivered by: BRIEANT
MEMORANDUM AND ORDER
BRIEANT, District Judge.
If there has ever been in the recent history of our jurisprudence, a single federal criminal case in which there has been greater, longer, or more extensive post-verdict review than that heretofore accorded to this petitioner, such case does not come readily to mind.
This latest petition, denominated as for a writ coram nobis , proceeds on the theory that petitioner, who has served hi sentence, is entitled to some relief here because (P12) "there is no valid distinction between the Court of Appeals' holding in Sullivan v. Fogg , decided January 18, 1980, 613 F.2d 465 (2d Cir.) on the key issue of a juror's mental incompetence," and the disposition of the "identical issue" in petitioner's direct appeal from his own conviction, affirmed January 7, 1974, sub nom. United States v. Dioguardi , and reported at 492 F.2d 70 (2d Cir.), cert. denied 419 U.s. 829, 95 S. Ct. 49, 42 L. Ed. 2d 53 (1974). Petitioner's own analysis of Fogg is that: "That decision, which seems to be a change in the law subsequent to petitioner's conviction, mandates that a hearing be held concerning the alleged incompetence of a juror in petitioner's case."
The contention is frivolous and has no legal basis. Any attempt in 1980 to delve into the mental condition of a juror during January 1973 would be an exercise in futility, assuming the juror is still alive and could be located at this late date. The passage of time alone would make any resolution of the issue a matter of pure speculation. There must be a point of rest, even in criminal cases.
Also, petitioner's contention that Fogg represents a "change in the law," as enunciated in his own case, is at variance with the precise words of the late Circuit Judge J. Joseph Smith, author of the Fogg opinion. Judge Smith, a distinguished and careful legal scholar, wrote Fogg with awareness of Dioguardi , and held, for reasons he carefully explained, that Dioguardi "is distinguishable" (p. 467 of 613 F.2d). Petitioner would like this district court to hold that his case (Dioguardi ) is in distinguishable on its facts from Fogg , in the face of a clear statement in the Fogg opinion to the contrary. He would like to have this Court conclude that a distinguished panel of the Court of Appeals for the Second Circuit is in fact "changing the law," when in its opinion, it clearly disclaims having done so. There is no basis for us to reach such a conclusion in this case. Nor is it by any means clear that any subsequent procedural decision arguably at variance with a judgment of conviction, justifies relief from that judgment.
Before leaving the issue, we note that petitioner has already been allowed to relitigate the incompetent juror issue once following his direct appeal. See Ostrer v. United States, 577 F.2d 782, 788 (2d Cir. 1978), cert. denied 439 U.S. 1115, 99 S. Ct. 1018, 59 L. Ed. 2d m3 (1979). The late Judge Smith was a member of the panel which rendered that decision and joined in the majority opinion, which holds in relevant part:
"We also affirm the district court's decision to deny the claim for a new trial based on purportedly new information concerning the mental state of a trial juror. On similar facts, the denial without hearing of a virtually identical motion was affirmed by this court in United States v. Dioguardi , 492 F.2d 70, 78-81 (2d Cir. 1974). We fully agree with the district court's characterization of this aspect of Ostrer's petition as 'cumulative, repetitious, and untimely.' The new information concerning the juror's mental state proffered by Ostrer in the affidavit of Junius Rush was substantially undermined by the affidavit later obtained from Mr. Rush and filed by the Government in which the affiant modified, if not repudiated, much of the first sworn statement."
While denominated as a petition for a writ coram nobis under 28 U.S.C. § 1651(a), this petition is in all procedural aspects congruent with a petition under 28 U.S.C. § 2255; the only difference is that this petitioner is no longer in custody. Accordingly, it seems appropriate that the Court be guided by the Rules Governing Section 2255 Proceedings for the United States District Courts, particularly Rule 4(b) thereof. In reliance on that Rule, and for the reasons set forth above, I find that it plainly appears from the Petition, and the prior proceedings, that petitioner is not entitled to relief from his judgment of conviction.
Summary dismissal prior to answer is directed in accordance with Rule 4(b) of the aforesaid Rules. The Clerk shall enter a final judgment.