United States v. Edward Zinner

U
BLD-160                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 20-2961
                                      ___________

                            UNITED STATES OF AMERICA

                                             v.

                               EDWARD M. ZINNER,
                                                   Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                      (D.C. Criminal Action No. 95-cr-00048-001)
                       District Judge: Honorable John R. Padova
                      ____________________________________

            Submitted on the Government’s Motion for Summary Affirmance
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 22, 2021
              Before: AMBRO, SHWARTZ, and PORTER, Circuit Judges

                             (Opinion filed: April 27, 2021)
                                       _________

                                        OPINION*
                                        _________
PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Edward Zinner appeals from the District Court’s order denying his petition for a

writ of coram nobis. After Zinner filed a pro se brief, the Government filed a motion for

summary affirmance. For the reasons that follow, we grant the Government’s motion and

will summarily affirm the District Court’s order.

       The procedural history of this case and the details of Zinner’s claims are well

known to the parties and need not be discussed at length. In 1995, Zinner pleaded guilty

to racketeering and was sentenced to 68 months in prison.1 After filing an unsuccessful

§ 2255 motion, he filed a motion pursuant to Fed. R. Civ. P. 60(b), alleging that his

counsel acted under a conflict of interest and misled him into pleading guilty. The

District Court denied the motion after holding an evidentiary hearing. See United States

v. Zinner, Crim. No. 95-0048, 

1998 WL 57522

, at *2 (E.D. Pa. Feb. 9, 1998).

       Over twenty years later, in 2019, Zinner filed another Rule 60(b) motion based on

the same allegations. The District Court denied the motion, and we denied his request for

a certificate of appealability. See C.A. No. 19-2839. In August 2020, he filed a pro se

petition for a writ of coram nobis, alleging yet again that counsel had a conflict of

interest. The District Court denied the petition, and Zinner filed a timely notice of

appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise de novo review

over legal issues arising from the denial of coram nobis relief. See United States v.



1
 Zinner is no longer in custody on the conviction at issue. He is currently serving a
sentence of 120 months in federal prison after pleading guilty to financial crimes. See
United States v. Zinner, Crim. No. 17-cr-00003 (E.D. Va. Apr. 18, 2018).
                                              2
Rhines, 

640 F.3d 69

, 71 (3d Cir. 2011) (per curiam). We may take summary action if an

appeal fails to present a substantial question. See 3d Cir. I.O.P. 10.6.

       A petitioner seeking a writ of coram nobis must, inter alia, assert an error of a

fundamental kind that had no remedy at the time of the criminal proceeding. Ragbir v.

United States, 

950 F.3d 54

, 62 (3d Cir. 2020). A fundamental error is one that

undermines the jurisdiction of the trial court and invalidates the proceeding.

Id. at 63.

The Supreme Court has noted, “it is difficult to conceive of a situation in a federal

criminal case today where a writ of coram nobis would be necessary or appropriate.”

Carlisle v. United States, 

517 U.S. 416

, 429 (1996) (internal alteration and quotation

marks omitted).

       Zinner has not alleged a fundamental error that would entitle him to coram nobis

relief. In his petition, he asserts that his defense counsel had a conflict of interest with

respect to Zinner’s guilty plea. This alleged error does not undermine the jurisdiction of

the trial court or invalidate his criminal proceedings. Moreover, as noted above, the

District Court held an evidentiary hearing addressing these allegations in 1998, and we

recently denied Zinner a certificate of appealability to appeal the denial of a Rule 60(b)

motion raising these same allegations. See C.A No. 19-2839.

       Summary action is appropriate if there is no substantial question presented in the

appeal. See 3d Cir. LAR 27.4. For the reasons set forth above, we grant the

Government’s motion for summary action and will summarily affirm the District Court’s

September 16, 2020 order. See 3d Cir. I.O.P. 10.6. The Government’s motion to be

excused from filing a brief is denied as moot.

                                               3

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