745 F.Supp.2d 536 (2010)
In re Application of Tommie H.
TELFAIR, also known as Hassan Gatling, Petitioner.
Index No. 10-2958 (GEB).
United
States District Court, D.
New Jersey.
October 15, 2010.
*537 Tommie H. Telfair, S. Kearny, NJ, pro se.
Catrina R. Gatling, pro se.
OPINION
BROWN, Chief Judge:
Ultimately, this matter comes before the Court upon
Petitioner Tommie H. Telfair's *538
("Telfair") submission of two filings, see Docket Entries Nos.
5 and 6, which Petitioner qualified, jointly, as his motion for reconsideration
("Motion") of the Court's prior decision entered in the instant
matter. For the reasons detailed below, Telfair's
present motion will be granted in form.[1]
However, the Court's prior disposition of Telfair's
claims will not change. Additionally, also for the reasons detailed below, a
limited order of preclusion will be entered with regard to all prospective pro
se filings executed by Telfair in this District, in the currently pending,
closed and future matters.
A meaningful discussion of the issues at hand is not
feasible without a careful examination of Petitioners' (that is, Telfair and Catrina R. Gatling's)[2]
prior actions in this District. This chain of prior actions will be subdivided
into two groups: (a) the criminal matter being prosecuted against Gatling; and
(b) the actions initiated against or by Telfair (that group, in turn, is
comprised of two distinct categories, i.e.: (1) the matters initiated in
connection with Telfair's currently ongoing criminal
prosecution; and (2) the civil actions initiated by Telfair seemingly in
response to his and, perhaps, Gatling's prosecution).
I. TELFAIR'S PRIOR ACTIONS
A. Telfair's
Criminal Prosecution
It appears that the relevant events began to unfold about
half a decade ago when,
[o]n . . . September 5, 2006,
officers of the Newark Police Department were dispatched to a residence at 185
Parker Street, Newark, New Jersey, to investigate a report of gunfire. Upon
arriving at the scene, officers were met by two occupants of the residence who
stated that they had heard gunshots fired at the backdoor of the home. Law
enforcement officers investigated the rear entrance to the home and discovered
several bullet holes in the back door and empty shell casings nearby. After
entering the residence with the apparent consent of the two occupants, law
enforcement officers observed bullet holes in the front of a refrigerator in
the kitchen. An officer then examined and opened the refrigerator, finding a
projectile in the bottom of the refrigerator. While searching for other
projectiles and evidence of the shooting, the officer discovered in plain view
clear plastic containers holding a substance resembling cocaine base. The
officers subsequently *539 discovered an additional substance that field tested
positive for the presence of heroin, as well as several small bags containing
quantities of heroin. On the following day, agents from the Drug Enforcement
Administration (the "DEA") interviewed the two occupants, who stated
that the heroin discovered in the residence belonged to an individual named
"Hassan Gatling," an apparent alias for [Telfair]. The two occupants
stated that they packaged certain quantities of heroin discovered at the
residence at the direction of [Telfair] for the purpose of distribution. The
two occupants further stated that they had received payment, in the form of
cash and goods, from Defendant for preparing and packaging the heroin for
distribution. A complaint and an arrest warrant were allegedly issued for
[Telfair] on or about September 8, 2006. On January 23, 2007, [Telfair] was
arrested at the home of his girlfriend, [who was] Gatling. . . . During a
post-arrest interview with law enforcement, [Telfair] apparently admitted that
he had engaged in criminal conduct and narcotics trafficking with several
individuals on numerous occasions in the State of New Jersey and elsewhere.
After extensive questioning, [Telfair] requested to speak with [an] attorney
[Telfair knew], Paul Bergrin. Law enforcement
officers allegedly complied with [Telfair's] request
and ceased questioning him. After a brief continuance following [Telfair's] arrest, a one-count criminal indictment was
filed on March 29, 2007 charging [him] with conspiracy to distribute and to
possess with the intent to distribute 100 grams or more of heroin . . . . A
superseding indictment was filed on May 7, 2007[,] . . . charging [him] with
conspiracy to distribute one kilogram or more of heroin . . . . [That]
superseding indictment was dismissed without prejudice [and Telfair] was
arraigned on a [new superseding] two-count indictment. . . charging conspiracy
to distribute and to possess with intent to distribute 1 kilogram or more of
heroin . . . and distribution and possession with intent to distribute 100
grams or more of heroin.
USA v. Telfair
("Telfair-DMC"), 08-cr-0757 (DMC), Docket Entry No. 14 (slip
opinion, hereinafter "DMC"), at 2-4.
Telfair's subsequent criminal proceedings were conducted in this
District and presided over by the Honorable Dennis M. Cavanaugh ("Judge
Cavanaugh"). Telfair proved to be a prolific pro se litigant. For
instance, during the short (two-month) period from the time of his second
re-indictment to Judge Cavanaugh's entry of the DMC decision, Telfair:
made roughly ten separate pro se filings. . . contain[ing] multiple and repetitive requests. From these filings,
[Judge Cavanaugh] identified ten substantive motions upon which it appear[ed] that [Telfair was] seek[ing]
relief, including: a motion to dismiss the second superseding indictment; a
motion to be released on bail; a motion to suppress statements made and
evidence seized; a motion for production of Jencks materials; a motion
for production of Rule 404(b) evidence; a motion for production of exculpatory
and impeachment materials; a motion requesting that the Government preserve
notes of government agents; a motion for a polygraph test; and a motion for a
change of venue [ these motions were made even though] many of these exact
motions and arguments were [already] considered and decided by [Judge
Cavanaugh] in a hearing on April 7, 2008[,] and a related Order issued on May
20, 2008 . . . .
DMC, at 4-5
and n. 2 (the language of footnote 2 is incorporated, in part, in the main
text).
*540 Addressing all Telfair's
motions anew, Judge Cavanaugh denied the bulk of these motions, while granting in
full Telfair's applications for production of Rule
404(b) evidence and preservation of notes of government agents, and also
granting in part his motions for polygraph test and for production of
exculpatory and impeachment materials. See id. at
15. Judge Cavanaugh's order and accompanying DMC opinion to that effect
were entered on December 10, 2008. See Telfair-DMC, Docket Entries 14
and 15.
While only three weeks passed since the entry of the DMC
opinion and accompanying order, during that time Telfair flooded Judge
Cavanaugh's chambers with new applications and caused Judge Cavanaugh to hold a
conference with regard to then-existing state of affairs in Telfair's
criminal proceedings. See Telfair-DMC, Docket Entry No. 19. Upon finding
Telfair's new submissions frivolous, Judge Cavanaugh
entered an order dated January 9, 2010, directing the Clerk to refuse
acceptance of any pro se motion from Telfair until further notice. See
Docket Entry No. 16. However, as the discussion below illustrates, Judge
Cavanaugh's order had no apparent effect on Telfair's
prolific pro se filings.
It appears that, at that juncture, Telfair was represented
by a certain Mr. Kimball (a Criminal Justice Act panel attorney who,
apparently, being duly appointed by Judge Cavanaugh, replaced Bergrin upon Telfair's request
for termination of Bergrin's representation): the
record in Telfair-DMC reflects Telfair's pro
se submission made with regard to Kimball, Telfair-DMC, Docket Entry
No. 17; that submission was filed less than a week after Judge Cavanaugh's
directive barring Telfair's pro se filings. See
id. The submission made with regard to Kimball read, in its entirety, as
follows:
Dear Mr. Kimball,
I hope that by now you have come to
understand that I don't plan to quit fighting, even if that means firing you.
My life, and the life of my family, is all that matters to me, not your job not
the D.A. just me and my family. So I'm kindly warning you, to do what needs to
be done so that all these violations of law(s) can and will be addressed,
rather by way of my present appeal, or by starting to actually put up a fight
in my case. Listen, I am far from stupid, I now know what my past present
counsel was/is suppose to have done, and what now needs to be done. For
example: the word, supersede simply means, to make void, or repeal by taking
the place of. Now what is bothering me is that you have allowed this error in
facts and/or errors in laws to go uncontested, as it pertains to my now newly
2-count indictment which is a serious double jeopardy violation, and is the
reckless act of multiplicity in the first instance. But of cores [sic] you
already know that, the attempted innocent misrepresentation is costing my legal
process to endure way to much judicial abuse. So I will keep this easily to the
point, pursuant to[] rule 18 U.S.C.A. 30064 3006A, you
really need to get my forensic specialist, and my investigator, and get me that
polygraph test and the polygraph test specialist, I want to see the documentations/credentials
of all parties being requested, and for the record I know that the federal
government has the money, and is obligated to provide every aspect of effective
representation, even if it is not you per se. In closing, I hope we have a
proper understanding counselor, I'll see you on or about the week of January
16th, 2009!
Respectfully Submitted,
Mr. Tommie H Telfair Pro-se Litigant
*541 Cc File: Tommie H Telfair Clerk of the Courts Honorable Judge Dennis M.
Cavanaugh Murray & Kimball's Law Offices Clerks of the Appeals Court
Telfair-DMC,
Docket Entry No. 17 ("Letter-Kimball") (original holding,
underlining and capitalization removed).
Five days later, Telfair filed a "notice an[d] request
to the United States Court of Appeals for the Third Circuit" challenging
Judge Cavanaugh's decision to deny some of his motions that were addressed in
the DMC opinion. See Telfair-DMC, Docket Entry No. 18 ("Telfair-Appeal").
In addition, six days later, Telfair filed a lengthy letter addressed to Judge
Cavanaugh; the letter asserted that Telfair "struggle[d] in this very
serious life threatening circumstance," scolded Judge Cavanaugh for
seeking to bar Telfair's pro se filings,
asserted "prejudicial and judicial abuse/neglect" on the part of
another judge in this District, Honorable William J. Martini ("Judge
Martini")[3] and requested assignment of another
court-appointed counsel (in place of Kimball) to represent Telfair. See
Telfair-DMC, Docket Entry No. 20. Seemingly aiming to re-stress his points
to Judge Cavanaugh, Telfair two weeks later repeated the very same filing,
supplementing it with another copy of his Letter-Kimball. See Telfair-DMC,
Docket Entries Nos. 21 and 22.
Within three following weeks (during which Judge Cavanaugh
held a conference addressing the then-pending procedural aspects of Telfair's criminal proceeding and entered an order
addressing the then-pending pre-trial motions and request for discovery, see
Telfair-DMC, Docket Entries Nos. 23 and 24), Telfair's
counsel was replaced again: Judge Cavanaugh appointed to the position no longer
held by Kimball Mr. Michael N. Pedicini ("Pedicini"). See Telfair-DMC, Docket Entry No.
25.
During the next half year, while Telfair's
criminal proceedings moved forward, see Telfair-DMC, Docket Entries Nos.
26, 28, 31 and 32, Telfair filed:
(a) a letter requesting on the grounds of his "being
procedurally repressed due to the contributory negligence of counsel [and the
operation of what he qualified as] prejudic[ial] appellate rule 31.3" production of
"documentation and proof of documentation" of all records submitted
to the Court of Appeals with regard to Telfair-Appeal, see Telfair-DMC,
Docket Entry No. 27; and
(b) a document titled "Attorney & Client
Arrangement(s)" in which Telfair notified Pedicini
of Telfair's opinion that his prior defense counsel
performed "constructive fraud [and] misconduct in Office, & Rules of
Professional Conduct/Responsibility and the violations thereof" and
demanded from Pedicini "arrangement(s)" in
the form of twenty-nine items, the list of which was comprised, inter alia,
of such irrelevant (either to the facts underlying Telfair's
prosecution or to the duties of his counsel), and/or confusing utterances as:
"investigator and forensic expert," "the filing of the pertinent
motions," "memorandum in support of laws and erred fact,"
"motion to remove a.k.a. [i.e., to remove the abbreviation of the
`also known as' designation]," "appellant type motions,"
"silver platter doctrine violations," "bill of rights
violations," "spoliation," "falsus
in uno," "mens rea," "stare decisis
doctrine," "address DEA fraud & misconduct/fraud of the
prosecutor(s)(via) office of professional conduct and responsibility in
Washington," *542 "protection type order for the client &
client's family," "address the illegitimate dates and/or info on all
paperwork," etc. See Telfair-DMC, Docket Entry No. 30 (use of
parenthetical and "&" sign in original, asystemic
bolding, capitalization, italization and underlining
removed). The "Attorney & Client Arrangement(s)" concluded with Telfair's directive to Pedicini
to seek recusal of Judge Cavanaugh on the grounds of Telfair's
opinion that Judge Cavanaugh was biased against Telfair. See id. at 2-3.
Apparently complying with the wishes of his client, Pedicini moved for recusal of Judge Cavanaugh, see
Telfair-DMC, Docket Entry No. 33, clarifying that he was making that
application upon Telfair's directive and explaining
that Telfair's opinion about Judge Cavanaugh's
"bias" was derived from Telfair's
displeasure with those prosecutorial actions which Telfair qualified as
"misconduct" and from Telfair's
disappointment with Judge Cavanaugh's finding that the venue of Telfair's prosecution need not be changed. See
Telfair-DMC, Docket Entry No. 33-1. Pedicini's
application for recusal was denied by Judge Cavanaugh, who continued presiding
over Telfair's prosecution, conducted a chain of
conferences and issued numerous orders propelling Telfair's
criminal proceedings. See Telfair-DMC, Docket Entries Nos. 35, 36, 44
and 45.
In response to Judge Cavanaugh's actions, Telfair generated
new filings, such as:
(a) an eleven-page single-spaced
document titled "Urgent Consideration Required" aiming, apparently,
to teach Judge Cavanaugh procedural and substantive law, see Telfair-DMC,
Docket Entry No. 37;
(b) a thirty-six-page document titled "Conditional
Application or Alternative Petition" asserting that Judge Cavanaugh's
decisions propelling Telfair's criminal action were a
result of a collective plot, allegedly perpetrated by all prosecutors and all Telfair's defense attorneys, Telfair-DMC, Docket
Entry No. 38;
(c) a twenty-eight-page document
virtually identical to the prior one, Telfair-DMC, Docket Entry No. 39;
(d) a five-page "Affidavit of
Merit(s)" asserting that the DEA "agents and/or prosecution did
knowingly threaten [Telfair] physically, mentally, and emotionally... by way of
using [Telfair's] children(s) mom as leverage," see
Telfair-DMC, Docket Entry No. 40;
(e) a twenty-eight-page
single-space motion seeking to use Telfair's
"polygraph-test examiner as [Telfair's]
character witness," see Telfair-DMC, Docket Entry No. 46;
(f) a two-part seventy-seven-page application seeking,
again, dismissal of indictment on the grounds on the ineffectiveness of Telfair's counsel (presumably, Pedicini);
that requests was accompanied by Telfair's opinion
that his prosecutors were committing "prosecutorial misconduct,
constitutional-tort and impeachable-offenses," see Telfair-DMC,
Docket Entries Nos. 48 and 48-1;
(g) a forty-page "motion to dismiss due to the
government's vindictiveness, selectiveness, and bad faith prosecution, double
jeopardy, equal protection violation(s)," see Telfair-DMC, Docket
Entry No. 49; etc.
While Telfair's flood of motions
accumulated before Judge Cavanaugh, Telfair's
criminal trial began. See Telfair-DMC, Docket Entry No. 50 (indicating
that the trial began on February 15, 2010). Thereafter, Telfair filed an
application seeking Judge Cavanaugh's appointment of Telfair as his own
co-counsel (on the grounds that in Telfair's opinion Pedicini was "refus[ing] to follow his client's instructions" *543 by not
"explosing [sic] misconduct in office, scheme to
defraud, police-corruption, conspiracy to the deprivation of rights, conflict
in law & facts, illegal-cohesion," etc.). See Telfair-DMC,
Docket Entry No. 51. That latest application was filed on February 19, 2010
(that is, four days into Telfair's trial) and its
merits or lack thereof regardless was moot upon receipt, as on that date
Telfair was found guilty by the jurors empaneled for
his trial. See Telfair-DMC, Docket Entries Nos. 53 and 54; see also
Docket Entry No. 56, at 2 (denying Telfair's request
to "co-counsel").
Having been found guilty, Telfair swiftly produced another
flood of voluminous applications, including:
(a) a notice of appeal;
(b) a twenty-seven-page motion to
"take judicial notice" of "improper joinder
of offenses";
(c) a two-part sixty-seven-page
"amended version" of the same;
(d) a motion to "appoint new counsel" asserting
that Telfair was "procedurally deprived" by Pedicini's
"intentional neglect(s) [and] contributory-negligence," and informing
the court that Telfair filed a legal malpractice action against Pedicini, see Telfair-DMC, Docket Entries Nos. 57-61
(and Docket Entry No. 71, at 10, replicating the summons in the action Telfair
initiated against Pedicini), etc.
These flocks of filings, in turn, prompted: (a) Judge
Cavanaugh's entry of another order directing the Clerk not to accept any
further pro se filings from Telfair, see Telfair-DMC, Docket
Entry No. 56, which same as the previous Judge Cavanaugh's order to that effect
was of no avail, and did not halt Telfair's exercises
in pro se litigation; and (b) Pedicini's
application to Judge Cavanaugh asking to relieve him from the duty of
representing Telfair (in that application, Pedicini
clarified that he was requesting relief in order to avoid the danger of
representation while under conflict of interest). See Telfair-DMC,
Docket Entry No. 72 (order granting Pedicini's
request).
Finally, as Telfair began awaiting his sentencing, he
submitted another (fifty-page) letter to the Court of Appeals seeking to prompt
the resolution of Telfair-Appeal, see Telfair-DMC, Docket Entry No. 71;
in response to which the Court of Appeals satisfied Telfair's
desire for a speedy review. See Telfair-DMC, Docket Entry No. 73
(denying Telfair's appeal as interlocutory).
B. Telfair's
Civil Actions in this District
While the dockets in the actions comprising Telfair's criminal prosecution appear rather lengthy,[4]
the cumulative of these dockets pales in comparison with Telfair's
activity this Court detected in the civil actions Telfair initiated in this
District.
1. Proceedings Before
Judge Martini
As noted supra, one of Telfair's
submissions addressed to Judge Cavanaugh asserted "prejudicial and
judicial abuse/neglect" by Judge Martini. See Telfair-DMC, Docket
Entry No. 20. That assertion was seemingly made in reference
to Telfair's civil action Telfair v. Tandy
("Telfair-WJM"), 08-cv-0731 (WJM).
Telfair-WJM
was initiated by Telfair's submission of a civil
complaint, executed pursuant to Bivens v.
Six Unknown Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 *544
(1971); that complaint (a nine-page single-spaced narrative) was received by
the Clerk on February 7, 2008, see Telfair-WJM, Docket Entry No. 1, at
1, that is, one week after Judge Cavanaugh appointed Kimball (who replaced Bergrin) as Telfair's defense
counsel. See USA v. Telfair, 07-0272(DMC) (reflecting the pertinent time
line). Assessing Telfair's Bivens
complaint, Judge Martini observed as follows:
Telfair, a federal prisoner
currently confined at the Hudson County Correctional Center in South Kearny,
New Jersey,... brings a civil rights complaint against the following
defendants: Karen P. Tandy, Administrator of the ... DEA; Gerard P. McAleer, Director [of the] DEA in Newark; 1-50 unknown DEA
agents; 1-50 unknown federal agents; Ray McCarthy, Chief of Police [in] Newark;
Murad Muhammed [an officer
with the] Newark Police ...; 1-50 unknown police officers; Paul W. Ber[g]rin, Esq.; and Christopher
Christie, United States Attorney for the District of New Jersey.... Telfair
alleges that on January 23, 2007, he was taken into custody by DEA agents, who
used terroristic threats to force [him] to admit to drug trafficking crimes or
cooperate with the agents in their investigation.... Telfair further alleges
that he had repeatedly requested an attorney during his custodial
interrogation, but his request was denied.... Telfair alleges that he was
pressured to take the Government's plea offer, and not to make any motions with
respect to the criminal charges against him.... Telfair claims that the
defendants violated his constitutional rights under the Fourth, Fifth, Sixth,
and Fourteenth Amendments. Namely, he asserts claims of false arrest, unlawful
search and seizure, falsifying documents and evidence, intimidation, criminal
threats, coercion, denial of his Miranda rights, denial of medical
treatment, theft or conversion of personal property, denial of due process and
equal protection, selective and malicious prosecution, and denial of his right
to a speedy trial.
Telfair-WJM,
Docket Entry No. 14, at 1-5.
Since, at the time of Judge Martini's entering his decision,
the Supreme Court of the United States was yet to decide its pivotal
standard-of-review case, Ashcroft v. Iqbal,
___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009),
which unambiguously articulated the applicability of the standard of review set
forth in an antitrust case, Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007),
to civil rights claims, Judge Martini employed, out of abundance of caution,
the test set forth in Conley v. Gibson, 355 U.S. 41,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957), which was
conclusively archived in Iqbal. See
Telfair-WJM, Docket Entry No. 14, at 8 (relying on Erickson v. Pardus, 551 U.S. 89,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), for reading
of the Twombly standard as a test compatible
with and substantively identical for the purposes of civil rights challenges to
that in Conley).
So assessing Telfair's claims,
Judge Martini concluded that Telfair's false arrest
claims were viable based on Telfair's conclusion
"that the DEA agents and other police officers had no reasonable suspicion
or probable cause to arrest him."[5]See *545 Telfair-WJM,
Docket Entry No. 14, at 14. Therefore, Judge Martini concluded that Telfair's false arrest claim should survive sua sponte
dismissal. See id. However, pursuant to the holdings of Heck v.
Humphrey, 512 U.S. 477,
114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Wallace
v. Kato, 549
U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007),
Judge Martini also concluded that this false arrest claim should be stayed.
Then, switching to Telfair's conclusion that the DEA
agents and Newark police officers conducted an unlawful search, Judge Martini
ruled that this claim, too, was subject to stay under Wallace v. Kato. See
Telfair-WJM, Docket Entry No. 14, at 19.
Upon so concluding, Judge Martini turned to the remainder of
Telfair's claims. Specifically, he dismissed Telfair's claims against Bergrin
(for failure to meet the color-of-law requirement), see id. at 21, as well as Telfair's claims
against prosecutors (on the grounds of prosecutorial immunity), see id. at 23, and also dismissed the claim of malicious prosecution
(as premature). See id. at 24.
So finding, Judge Martini switched to Telfair's
claims based on the unelaborated allegation that "his Miranda rights
were violated," see id. at 25, and
dismissed these claims (on the grounds that police questioning without a Miranda
warning cannot give rise to a cognizable Bivens
claim). See id. at 25-26. Similarly dismissing Telfair's due process, speedy trial and equal protection
claims, see id. at 26-27, and his property
claims barred by the Federal Tort Claims Act, see id. at 29, Judge
Martini directed service solely as to a single Telfair's
claim that was not subject to dismissal or stay, i.e., the claim based
on Telfair's unelaborated assertion that Telfair was
"denied medical treatment" for his allegedly broken hand. See id.
at 27-28.
Since Judge Martini made express findings only with regard
to Telfair's claims (without addressing Telfair's allegations as they applied to each particular
defendant named in the caption of Telfair's civil
complaint), the Clerk correctly discerned that Telfair's
claims against Christie and Bergrin were dismissed.
However, since the discussion provided in Judge Martini's decision did not
expressly correlate the identities of other defendants with any other Telfair
claim, the Clerk out of abundance of caution served process on all remaining
defendants, i.e., on Ms. Tandy and Messrs. McAleer,
McCarthy and Muhammad. See Telfair-WJM, Docket Entry No. 16.
Eventually, Tandy and McAleer
moved for summary judgment asserting, inter alia, that Telfair's claims had to be dismissed as based solely on
Tandy and McAleer's supervisory positions. See
Telfair-WJM, Docket Entry No. 30 (making the argument the correctness of
which has become self-evident in light of the Supreme Court's 2009 decision, Iqbal). Judge Martini granted Tandy and McAleer summary judgment (pointing out that Telfair's pleadings both the original complaint and the
amended one were barren of any allegations as to Tandy and McAleer's
personal involvement in any alleged wrong). See Telfair-WJM, Docket
Entry No. 41.
However, neither Tandy and McAleer's successful Rule 56 motions (nor the decisions
that Judge Martini entered addressing Telfair's
claims) renders Telfair-WJM a remarkable proceeding. Rather, the
flood of submissions Telfair packed into that action renders that matter an
anomaly.
Indeed, in addition to his original and amended complaints,
Telfair filed, inter alia:
(a) a ten-page single-spaced
"petition in support of civil motion," to Judge Martini, *546 see
Telfair-WJM, Docket Entry No. 12;
(b) a nineteen-page
"memorandum of law in support of bail motion and due process
violations," to Judge Martini but also addressing issues not raised in Telfair's original or amended pleadings, see
Telfair-WJM, Docket Entry No. 13;
(c) an appeal with regard to Judge Martini's decision
(asserting that "while [Telfair] struggle[s] in the fight for [his]
life," Judge Martini improperly erred in his conclusions by dismissing Telfair's claims on such a petty basis as Telfair's failure to assert sufficient grounds for Telfair's claims), see Telfair-WJM, Docket Entry No.
20;
(d) another letter asserting that, while Telfair
"struggle[s] in this very serious legal circumstance[, he is] being forced
between a rock and a hard place" by Judge Martini's "sabotaging [his]
case intentionally [and] allow[ing] much miscarriage
of justice to be swept under the rug," see Telfair-WJM, Docket
Entry No. 25;
(e) a letter apparently related to Telfair's
legal malpractice action against Bergrin,[6]
putting Judge Martini on notice of Telfair's opinion
that Bergrin was "intentionally stalling these
proceedings with which [Bergrin] is causing serious
additional injury to [Telfair's] legal process,"
see Telfair-WJM, Docket Entry No. 31;
(f) a "declaration in support
of plaintiff-petitioner(s) civil-action," in which he "respectfully
request[ed Judge Martini to] offer [Telfair] the
constitutionally fair administration of justice," see Telfair-WJM,
Docket Entry No. 32;
(g) a "declaration in support
of petitioner(s)," stating effectively the same, see Telfair-WJM,
Docket Entry No. 33;
(h) one more
"declaration," asserting again
the same, see Telfair-WJM, Docket Entry No. 34;
(i) a
letter aiming to prompt the Court of Appeals to reach a speedier decision with
regard to Telfair's Appeal of Judge Martini's
screening of the complaint in Telfair-WJM, see Telfair-WJM, Docket Entry
No. 37;
(j) a Rule 60 motion, see
Telfair-WJM, Docket Entry No. 38;
(k) a copy of Telfair's
"Attorney & Client Arrangement(s)" aimed at Pedicini,
the counsel representing Telfair in Telfair-DMC, see Telfair-WJM, Docket
Entry No. 39;
(l) a letter notifying Judge
Martini that Telfair was applying for certiorari from the United States Supreme
Court, see Telfair-WJM, Docket Entry No. 43;
(m) a letter providing Judge
Martini with details of Telfair's application for
certiorari, see Telfair-WJM, Docket Entry No. 44;
(n) a thirty-page correspondence
comprised of a potpourri of documents created with regard to Telfair's criminal prosecution, see Telfair-WJM,
Docket Entry No. 45;
(o) a thirty-six-page three-part "conditional
application or alternative petition," informing Judge Martini of Telfair's opinion that, with regard to his criminal
proceedings, "the government and state officials have conspired to the
malicious manifest deprivation of rights and the perpetration of a fraud
tantamount to *547 impeachable-offenses," see Telfair-WJM, Docket
Entry No. 46;
(p) an "affidavit of merit in
lieu of certification in support of legal-matter(s)," reciting those
questions that were asked during Telfair's polygraph
test administered in connection with Telfair-DMC, see Telfair-WJM,
Docket Entry No. 47;
(q) a twenty-nine-page three-part "joinder
tort complaint & motion to consolidate" asserting that Telfair's "prosecutions... have been initiated with
unethical conduct and character, and with purpose of covering for state &
government fraud and/or corruption, tantamount to wrongful arrest and the
perpetration of a fraud & bad faith prosecution," see Telfair-WJM,
Docket Entry No. 48;
(r) another, this time
thirty-one-page and six-part "joinder tort
complaint," alleging the very same, see Telfair-WJM, Docket Entry
No. 49;
(s) a thirty-one-page letter
reciting the same, once again, see Telfair-WJM, Docket Entry No. 50;
(t) a thirty-three-page letter,
still elaborating on the same, see Telfair-WJM, Docket Entry No. 51;
(u) a thirty-six-page five-part repeat of the same,
progressing to the language that asserted "government and state vexatious,
frivolous and/or capricious bad faith prosecution and outrageous official
misconduct," see Telfair-WJM, Docket Entry No. 52;
(v) a sixty-one-page six-part
"conditional application or alternative petition for review (amended) in
conjunction with... affidavit of merit(s) in support of civil/tort
action," which was still maintaining the same, see Telfair-WJM,
Docket Entry No. 53;
(w) another copy of the same
"conditional application," see Telfair-WJM, Docket Entry No.
54;
(x) an application for
"emergent" relief seeking immediate trial in Telfair-WJM, that
is, in the action where the responsive papers were yet to be filed by the two
non-dismissed defendants, McCarthy and Muhammad, see Telfair-WJM, Docket
Entry No. 55;
(y) one more copy of the same
"emergent" application, see Telfair-WJM, Docket Entry No. 56;
(z) a "conditional application for order to show
cause," requesting Judge Martini to issue an order directing the United
States Attorney General, the United States Solicitor General, the undersigned
and all not dismissed (and also all dismissed) defendants in Telfair-WJM
to "show cause as to why the hereof pleadings should not issue against
them in accordance with prayer of said pleadings," see Telfair-WJM,
Docket Entry No. 58;
(aa) a
"corrected" version of the same, which nonetheless was alleging
exactly the same, see Telfair-WJM, Docket Entry No. 59,
(bb) as well as another motion for reconsideration, another
"petition issuance for order to show cause," one more "petition
issuance for order to show cause," petition for de novo review,
application for leave to file another "oversized brief," a notice
seeking joinder of claims, a letter seeking the same,
etc. See Telfair-WJM, Docket Entries Nos. 61-68.
Judge Martini, the Court of Appeals, the United Stated
Supreme Court and even counsel for defendants in Telfair-WJM did not
ignore Telfair's submissions. Indeed, the Court of
Appeals dismissed Telfair's appeal without reaching
the issue of procedural propriety or the merits of his appeal: the dismissal
was for failure to prosecute as a result of Telfair's
refusal to pay the requisite filing fee. See Telfair-WJM, *548 Docket
Entry No. 40. The Supreme Court, too, addressed Telfair's
challenges by issuing six decisions, first denying Telfair's
application for a writ of mandamus, see In re Telfair, 130 S.Ct. 511, 2009 U.S. LEXIS 7902 (2009), then denying his
request for a writ of prohibition, see In re Telfair, 130 S.Ct. 511, 2009 U.S. LEXIS 7924 (2009), then denying his
application for certiorari, see In re Telfair, 130 S.Ct.
511, 2009 U.S. LEXIS 8176 (2009), after which denying his application for
rehearing, see In re Telfair, ___ U.S. ___, 130 S.Ct.
1044, 175 L.Ed.2d 640 (2009), following that decision with another denial of
request for rehearing, see In re Telfair, 130 S.Ct.
1045, 2009 U.S. LEXIS 8957 (2009), and concluding with the third round of
denial of rehearing, see In re Telfair, 130 S.Ct.
1045, 2009 U.S. LEXIS 8958 (2009, entered on December 14). Meanwhile, counsel
for the long-dismissed Telfair-WJM defendants Tandy and McAleer filed a letter addressed to Judge Martini, seeking
the Court's assistance in stopping Telfair from referring, in each and every
application Telfair was filing in Telfair-WJM, to Tandy and McAleer as actual defendants. See Telfair-WJM,
Docket Entry No. 57. In response, Judge Martini issued an order explaining to
Telfair that Telfair's latest flood of submissions
was virtually incomprehensible and, to the extent Telfair wished to raise any
claims on behalf of Gatling, these claims were improperly asserted since
Telfair lacked standing to raise challenges on Gatling's behalf. See
Telfair-WJM, Docket Entry No. 60.
Apparently taking notice of the fact that his submissions
were read and responded to, Telfair increased his litigious efforts by filing
six submissions during just the month of June, i.e.:
(a) a twenty-two page motion for reconsideration asserting
that, in his claims related to Gatling, he should have been deemed to have standing
to sue because he was conducting what he qualified as his own "chief
litigation" of "tortuous-conduct ... tantamount to ex post facto
violation(s)," see Telfair-WJM, Docket Entry No. 61;
(b) a twenty-five page "de
novo conditional application for issuance of order to show cause," see
Telfair-WJM, Docket Entry No. 61;
(c) a forty-six page repeat of
effectively the same, Telfair-WJM, Docket Entry No. 62;
(d) another copy of the same, see
Telfair-WJM, Docket Entry No. 63;
(e) an application "for leave
to file oversize[d] de novo petition for review," see Telfair-WJM,
Docket Entry No. 64;
(f) a forty-one page "notice/joinder
tort complaint with motion to consolidate" making the already familiar
accusations of "vexatious-litigation, frivolous, and/or capricious bad
faith prosecution and outrageous official misconduct," see Telfair-WJM,
Docket Entry No. 66; and
(g) a document virtually identical
to the initial filing made in the matter currently before this Court.[7]See
Telfair-WJM, Docket Entry No. 65.
2. Telfair's
Civil Actions Duplicative to Telfair-WJM
Telfair's civil litigation activities in this District were not
limited to the volumes he filed in Telfair-WJM. In addition to that *549
action, Telfair also instituted two other proceedings, Telfair v. Holder
("Telfair-DMC-Civil"), 10-cv-0048 (DMC), and Telfair v.
Holder ("Telfair-SDW"), 09-cv-2806 (SDW), by filing two
other submissions which the Clerk qualified as Telfair's
civil complaints.
In Telfair-SDW, Telfair submitted a two-part
forty-two page document titled "petition for review/remedy," see
Telfair-SDW, Docket Entry No. 1, while in Telfair-DMC-Civil, he
filed a three-part thirty-six page document titled "corrected conditional
application or alternative petition with affidavit of merit in support." See
Telfair-DMC-Civil, Docket Entry No. 1. Judge Cavanaugh, presiding over Telfair-DMC-Civil,
observed that: (a) Telfair's criminal trial concluded
a week prior to Telfair's filing of the submission
initiating Telfair-DMC-Civil; and (b) Telfair's
claims in Telfair-DMC-Civil presented a mix of allegations mimicking
those raised in Telfair-WJM and those that could, arguably, be
entertained in a § 2255 action. See Telfair-DMC-Civil, Docket Entry No.
2. Therefore, Judge Cavanaugh dismissed Telfair's
"corrected conditional application or alternative petition" without
prejudice, as a premature Section 2255 application. See id. at 2.
Judge Cavanaugh's decision, entered on February 24, 2010,
was substantively analogous to the one issued eight months prior by Honorable
Susan D. Wigenton ("Judge Wigenton")
with regard to Telfair-SDW. See Telfair-SDW, Docket Entry No. 2.
Specifically, Judge Wigenton observed as follows:
[Telfair] is a party to another
action, [Telfair-WJM], which is substantively identical to the instant
matter. Indeed, [Telfair's] amended complaint in [Telfair-WJM]
is the very same document docketed in the instant matter as [Telfair's "petition for review/remedy"].
Moreover, the other document submitted by [Telfair for Judge Wigenton's review] presents reiterations of the same, mixed
with statements that vaguely resemble habeas challenges and laced with
excessive amount of [Telfair's] generic legal
statements and citations, the reason for which is not entirely clear to this
Court.
...
[Telfair's]
habeas challenges, i.e., challenges to the fact of his conviction or
duration of his confinement, if any such challenges are intended, should be
brought by filing [direct appeal or an appropriate] habeas petition, [as] a
separate action.
...
The [Bivens]
aspects of the instant matter are duplicative of [Telfair-WJM], and
should be dismissed as such [on the basis of the] power of a federal court to
prevent duplicative litigation and to protect parties from the vexation of
concurrent litigation over the same subject matter.
Id. at 1-2
(citations to legal sources and docket entries, as well as quotation marks,
omitted).
Upon so finding, Judge Wigenton
directed administrative termination of Telfair-SDW, see id., and Judge
Cavanaugh ordered the same result eight months later with regard to Telfair-DMC-Civil.
See Telfair-DMC-Civil, Docket Entry No. 2.
II. CRIMINAL PROSECUTION OF GATLING
While the above-described criminal and civil matters
initiated by and against Telfair were unfolding, another criminal action got
underway: the prosecution of Telfair's apparent
girlfriend, Gatling. See USA v. Gatling, 07-3528, and USA
v. Gatling (Gatling), 10-cr-0195 (DMC).
*550 A criminal complaint against
Gatling was filed on March 9, 2007 (that is, six months after a criminal complaint
was filed against Telfair). See Gatling, Docket Entry No. 1.
Specifically, the complaint filed against Gatling alleged that,
[o]n September 8, 2006, a criminal
complaint and arrest warrant were issued by [a judge in this District] charging
... Telfair with ... conspir[acy]
to distribute and possess with intent to distribute... cocaine base .... Law
enforcement agents learned that Telfair and ... Gatling were romantically
involved, and that Telfair had resided with Gatling at the residence located at
62 Winthrop Street, Newark, New Jersey (... "Residence")
prior to the issuance of the criminal complaint [against him. L]aw enforcement agents interviewed Gatling and asked [her]
if she knew Telfair [but] Gatling denied knowing [him], and denied that Telfair
was her boyfriend. On... September 15, 2006, law
enforcement agents [again] interviewed Gatling [that interview was conducted]
at the Essex County Jail in Newark, New Jersey, where Gatling was employed as a
corrections officer. During this interview, Gatling [admitted] that she had
lied to law enforcement agents during [her prior] interview ..., and admitted
that Telfair was her boyfriend of approximately seven years. Gatling further stated
that Telfair had visited her frequently at the Residence, and that she spoke
with Telfair regularly by telephone. [Gatling] denied any other knowledge of Telfair's current location. During this [second interview],
law enforcement agents advised Gatling, in substance, that Telfair was a
fugitive, and that if she assisted Telfair in avoiding arrest, she could he
charged with harboring a fugitive.
On ... January 22, 2007, law
enforcement agents observed an individual subsequently identified as Telfair,
exit the Residence and enter a Honda Pilot parked outside the Residence. Law
enforcement agents determined that this Honda Pilot [was] leased in defendant
Gatling's name. Later that same day, law enforcement agents
observed the Honda Pilot arrive at the Residence driven by Gatling.
...
On ... January 23, 2007, law
enforcement agents arrested Telfair as he exited the Residence and approached
the Honda Pilot parked outside. At the time of his arrest, Telfair possessed a
set of keys to the Honda Pilot and a set of keys to the Residence. Telfair also
knew the code for an alarm installed at the Residence, and used this code to
deactivate the alarm in the presence of law enforcement agents.
...
On ... January 23, 2007, law
enforcement agents interviewed Telfair who stated, in substance and in part,
that: (a) he knew that a warrant for his arrest was outstanding; (b) he used
the Honda Pilot to drive Gatling to her employment the prior day [(] on ...
January 22, 2007[)]; (c) he had been residing with defendant Gatling at the
residence for a long time; and (d) his clothing was stored in the bedroom of
the Residence.
...
On ... January 31, 2007, law
enforcement agents interviewed Gatling who stated, in substance and in part,
that: (a) she recalled being interviewed by law enforcement agents ...
concerning the whereabouts of Telfair; (b) at all times following her initial
interview with law enforcement agents ... and continuing through January 31,
2007, Gatling knew that a warrant for Telfair's
arrest remained active and that Telfair remained a fugitive; (c) Telfair began
periodically visiting Gatling at the Residence [since] *551 November 2006,
[and] Telfair's visits became more frequent, and ...
eventually Telfair resumed living at the Residence with Gatling and her son; (d)
Telfair utilized Gatling's cellular telephone [(since] Telfair did not have a
phone of his own; (e) Telfair drove Gatling's Honda Pilot and transported [her]
to and from her employment at the Essex County Jail; and (f) she knew that
Telfair possessed a set of keys to the Residence.
Id.
On March 13, 2007, four days after the above-quoted criminal
complaint was filed, Gatling was arrested and ordered released, same day, on
$50-thousand bail. See Gatling, Docket Entries Nos. 2 and 5. Unlike Telfair's criminal proceedings, Gatling's prosecution has
been uneventful. See Gatling, Docket Entries Nos. 4 to 27 (indicating, inter
alia, appointment of counsel for Gatling (who, as this Court writes this
Opinion, seemingly continues his representation of her), waiver of preliminary
hearing, relaxation of the terms of Gatling's bail bond by removing any
encumbrances from the property of her bond co-signor, etc.). This apparently
mutual civility continued throughout Gatling's indictment and arraignment
processes (which took place on March 18, 2010, and May 12, 2010, respectively,
resulting in the entry of a formal charge on one count of harboring a felon), see
Gatling, Docket Entries Nos. 28 and 31, and remained throughout discovery.[8]See
Gatling, Docket Entries Nos. 32-34.
On August 3, 2010, Judge Cavanaugh, presiding over the Gatling
matter, held a hearing with regard to Gatling's decision to plea
guilty to the harboring a felon charge, see
Gatling, Docket Entry No. 35 (directing, inter alia, continuance of
her bail); accord Gatling, Docket Entries Nos. 36 and 37 (Gatling's
application for permission to enter plea of guilty and her plea agreement), and
set Gatling's sentencing date for November 15, 2010. See Gatling, Docket
Entry No. 35.[9]
III. SUBMISSIONS MADE IN THE INSTANT
MATTER
The instant matter was initiated by Telfair by filing a
submission executed on June 3, 2010, see Instant Matter, Docket Entry
No. 1, at 19 (i.e., three and a half months after Telfair was found
guilty and at the time when Telfair was prompting the Court of Appeals to speed
up the resolution of Telfair-Appeal; it was also about three weeks after
Gatling was arraigned on the harboring a felon
charge, see Telfair-DMC and Gatling, Dockets). That original
submission consisted of three parts totaling twenty-eight pages. See
Instant Matter. Docket Entry No. 1. Nine days later, that is, on June 25, 2010,
the Clerk received from Telfair an "emergent de novo grievance," this
time encompassing forty-two pages. See Instant Matter, Docket Entry No.
2. Pursuant to the dictates of Local Civil Rule 104.1(e)(2),
the instant matter was reassigned to the undersigned.
*552 A. Telfair's
Initial and Second Filings in the Instant Matter
The Court can roughly map the content of Telfair's
aforesaid first two rounds of submissions as follows:
1. The first round consists of: (a) a one-page declaration
averring that Telfair was making his statements under penalty of perjury, see
Instant Matter, Docket Entry No. 1-1; (b) an eight-page "appendix"
(informing this Court that, with regard to Telfair-DMC, Telfair was
administered a polygraph test and, in addition, that he had filed a legal
malpractice action in state courts against Pedicini),
see Instant Matter, Docket Entry No. 1-2; and (c) a nineteen-page
single-spaced grievance form ("Form-I"). The Form-I is a purely
"homemade" production, that is, in the sense that it integrates: (a)
the language obtained by Telfair from some pre-printed form (or from various
pre-printed forms) and ethics code; with (b) the material generated by Telfair
himself, i.e., the Form-I is merging all of the above into what strives
to appear as a single pre-printed document just "filled up" by
Telfair. See Instant Matter, Docket Entry No. 1. As noted at the outset
of this Opinion, the first page of the Form-I designates Telfair as the
"grievant," and the last page bares solely Telfair's
signature, while as detailed below the body of the Form-I is seemingly focusing
and setting the bulk of claims on behalf of Gatling. The content of the Form-I,
while lengthy, warrants at least a cursory overview. Specifically,
a. The Form-I opens with the
introductory language reading, "Mail this Form to one of the Clerk(s) of
the Courts, For The United States District Court for the District of New Jersey
3rd cr. Mark the Envelope `Confidential: Professional Misconduct Complaint' or
`Confidential: Judicial Disability Complaint,'" see Form-I, at 1
(capitalization and lack thereof in original), seemingly aiming to create the
impression that this District generated "a" pre-printed form that was
eventually utilized by Telfair for the purposes of submitting the Form-I, even
though this District neither created nor disseminated such a form, not could it
ever refer to the Third Circuit as "3rd cr."[10] Upon so
opening, the Form-I proceeds to the heading which reads, "RULES OF
ADMISSION AND PRACTICE (APPENDIX TO RULE 46 OF THE RULES OF PRACTICE AND
PROCEDURE) RULE 6 ACCUSATION OF PROFESSIONAL MISCONDUCT"; that heading, in
turn, is followed by what seems to be Telfair-generated three pages of dictates
as to how this Court and the Clerk should act. See id.[11]
*553 b. After stating the
above-discussed three pages of Telfair's
"rules" (the origin of which this Court cannot discern), the Form-I
proceeds with another two pages of copied material, this time replicating Canon
One of the Code of Judicial Conduct ("CJC," which is facially
inapplicable to any matter of attorney rather than judicial discipline), then
reproduces an eliminated commentary to Cannon One,[12] and then
merges the language of that eliminated commentary into altered-by-Telfair parts
of the Preamble to the CJC. See Instant Matter, Docket Entry No. 1, at
3-4.
c. Having provided such four-page
"introduction," Telfair once again designates himself as a
"grievant" and, at that juncture, introduced Gatling by designating
her as his "associated aggrieved."[13]See id. at 4. He also clarifies that he is grieving about the
conduct of "Office of the U.S. Attorneys' the Agent(s) for the Government
and Defense Counselor(s)," but makes this statement without providing a
single specific name of any attorney, hence, inviting this Court to conduct a
disciplinary review of all lawyers employed by the Office of the United
States Attorney and, in addition, of all lawyers that ever acted or are currently
acting as defense counselors (presumably, in this District). See id.
d. The following twelve pages of the
Form-I represent a narrative, which is subdivided into thirty-three paragraphs
(with a heading reading "Colloquy" interjected into the midst of that
narrative). See Instant Matter, Docket Entry No. 1, at 5-38. These
thirty-three paragraphs are, in turn, composed of intermeshed statements that
could be roughly subdivided into three categories:
(i) generalities, often nearly identical to the content of Telfair's multiple applications filed in Telfair-DMC
and Telfair-WJM; these statements are peppered by legal and Latin
terminology having no relevance to the content of the narrative. See id.
For instance, Telfair informs this Court that
[t]he aggrieved, Telfair and Gatling
and their children[[14]] have had to suffer
irreparable injury, duress, and the emotional stress and strains as a result of
Gatling being used as collateral through [Telfair's]
entire litigation(s) in fear of, as a mother losing their children, their home,
and as a child losing their mother after already losing their father, See > Estoppel by Negligence and *554 the violations thereof. The
derivative-tort, ex post facto, and the ex delicto
stems from Gatling being used as collateral and is NOW being used as a
unilateral punishment for [Telfair] and/or where the government is trying to
dissolve Gatling's litigation in order to escape further liability, See >
Legal Estoppel and the violations thereof. [Both]
Gatling, and her family have suffered irreparable injury and will sustain
further overt-action(s) unless this grievance is granted or, in the alterative
given "Full" Prima Facie Review on its merits. [Telfair] ha[s]
continually been deprived of rights, and the necessity for emergent
intervention is of a unique-crux. The fact(s) based on the present and previous
pleading submitted to the District Court by [Telfair] qualifies [Telfair] for
automatic-standing to complain and the paradox situation inadvertently have
created procedural discrimination and further exposes [Telfair] and Gatling to
official retaliations of epidemic proportions ....
[Telfair and Gatling] have been the victims of extreme machination by the
governments' attorneys' and the attorney(s) whom where to defend them, and that
due to the fraud by the inducement, Gatling have been force to resign from her
job in law enforcement as a result of the overt actions and professional
misconduct initiated hereinafter.... As can be clearly seen here, the
Government is attempting to coerces [Gatling] to
assist in the furtherance of obstructing justice to avoid the repercussion of
its overt actions tantamount to retaliation and the scheme to defraud.... The
prejudicial maneuvering by the official(s) have led to the impediment of the
grievant(s) rights for judicial relief, additionally Gatling and her family is
suffering-severely and to put it blunt, it is mandatory that the law respond
either enjoining what's been happening, and issue an order of protection,
and/or restraining order which would prevent further injury pending review on
the merits in the interest of justice.... Standing Zone of Protected
Interest.... Gatling is a single mother working two jobs, and due to the overt actions
of her attorney(s) acting to effect the malpractice tort, coupled by the overt actions
of the government's official acting to effect speculation and wagering on
official information, suborning perjury and the constitutional & negligent tort,
and the conspiracy to the deprivation of rights, Gatling is being faced with a
federal conviction for something that she is innocent of ....
Presently the government or its state counterpart is trying to legitimize the
overt actions initiated through the arrest and federal prosecution of [Telfair
and] Gatling tantamount to government retaliation presently aimed at Gatling
because [Telfair] ha[s] been fighting his case and for exercising his
constitutional and procedural rights. The government is also being tactical due
to the "enormous amount of liability the government faces if found guilty
of the allegations" tantamount to Prima Facie Tort. See > Affidavit of
merits attached herewith.... There is no way without the proper judicial
jurisprudence [Telfair and] Gatling or her children could survive the impact of
these violations; there is no way Gatling is going to have the money, strength
or courage *555 to defend herself against might and machinations of the
government with all the is at stake for the government, nor the resources to
defend against the allegation, where the entire legal process have been leveled
in total favor of prosecution. coupled by the fear of what lo[]sing could mean
for a person that has never been in any trouble and is now fighting for her
life, and the life of her children; base on the foregoing, [Telfair] is at the
mercy of this tribunal to prevent the obvious. Gatling
nor her children should have to pay for the unethical law practices of the
officials whom are trying everything to justify what's been done during this
entire situation, versus trying to correct what's been done throughout this
entire legality. Based on the foregoing predicates [Telfair] implores this
tribunal to expedite the petition for review in the furtherance of justice....
[Telfair] further request that an order be entered enjoining any harassments of
[him], Gatling and any witnesses of same from any government or state
officials; and further implore this tribunal to lend assistance in the
foregoing matter(s), because of the hardships of the circumstances, Gatling blames
[Telfair] for the action taken by the arresting officials and the actions
furthered by the government .... [T]he fact that
[Telfair] ha[s] been confined for more than 3-years ... [is] leaving [Telfair]
and Gatling extremely overwhelmed physically, emotionally, and past the point
of dire-straights; with no responds to [Telfair's]
complaints & petition(s) for review so readily apparent, [Telfair]
respectfully implore this tribunal to immediately issue an order... to enjoin
or stay [Telfair's] and Gatling's entire [criminal]
litigation....
Id. at 4-16 (underlying, brackets and bolding removed;
capitalization, apostrophes, parenthetical marks, punctuation, spelling and
angle brackets in original);
(ii) The foregoing is heavily laced
with Telfair's lengthy opinions as to what the
applicable law and public policies are or should be. See id. at 4-17; and
(iii) In addition, the Form-I
contains a few factual statements leading this Court to conclude that Telfair
is expressing his disappointment with Gatling being relieved from her employ, see
id. at 8 ("Gatling ha[s] been forced to
resign from her job in law enforcement"), with the circumstances of
Telfair and Gatling's arrests, see, e.g., id. at
12, with the fact that Gatling and Telfair's criminal
prosecution are currently underway rather than postponed either indefinitely or
until Gatling's son is legally emancipated, see id. at 14 (referring to
"Gatling's fears, her emotional state of being, and that the government is
wagering on Gatling's family situation, knowing her children have no other
parent left to look after them outside of [Telfair]"), with the fact that
Gatling was offered a plea agreement, see id. at 13 ("government is
trying to capitalize on Gatling's fears, in attempting to induce her into
taking a plea or thinking she's facing 5 year and that she should accept 2 to 3
years"), with the fact that superceding
indictments were filed against Telfair, see id. at
9 (referring to the "indictment number(s) which led to the double jeopardy
violation"), and with the fact that his motions and applications to call
certain persons as witnesses were denied.[15]*556 See id.
Finally, it appears that Telfair asserts that "the government" unduly
capitalized on Telfair's affections for Gatling. See
id. at 5 and 13 ("Gatling ... used as
collateral"; "Gatling ... used by the government as
collateral").
2. Telfair's second round of
submissions ("Form-II") presents effectively the same Form-I (with a
few paragraphs reshuffled, and a few additional discussions of Telfair's vision of law added). See Instant Matter,
Docket Entry No. 2, at 1-20. The part repeating the Form-I is followed by Telfair's "declaration," virtually identical to
that described supra in conjunction with the Court's detailing the
content of Telfair's initial round of submissions. See
id. at 22. The Form-II and declaration are
accompanied by a twenty-page "appendix" which has:
(a) a page
informing this Court, once again, that Telfair is pursuing a legal malpractice
claim against Pedicini in the state courts, see
id. at 23;
(b) an "affidavit of merit in
lieu of certification in support of legal-matter(s)" submitted (or
intended to be submitted) to an unspecified tribunal in connection with Telfair-WJM;
it is discussing the polygraph test Telfair had in connection with Telfair-DMC,
see 24-25; that "affidavit" is submitted jointly with a document
marked "Confidential/To Whom It May Concern" and reciting the same
polygraph test, see id. at 26; the two are
packaged jointly with a copy of the letter from Judge Cavanaugh to Telfair's counsel addressing the issue of costs of that
polygraph test, see id. at 27;
(c) a copy
of the declaration submitted by the now-dismissed defendants Tandy and McAleer in Telfair-WJM, see id. at
28-31;
(d) a copy
of the order by Judge Cavanaugh aiming to stop the flood of Telfair's
filings in Telfair-DMC, see id. at 32;
(e) a copy
of Gatling's proposed plea agreement,[16]see id. at 33;
(f) copies
of two letters indicating that Telfair attempted to file a grievance against Pedicini with the New Jersey Lawyers' Fund for Client
Protection, see id. at 34-35;
(g) copies
of letters indicating Telfair's filing of ethics
grievances against Bergrin, Kimball and Pedicini with the Office of Attorney Ethics
("OAE"), see id. at 36, 39;
(h) a copy
of the letter from the OAE declining docketing of Telfair's
ethics grievances against Joseph N. Minish and Paul
B. Matsy, see id. at
41; and
(i) a copy of a subpoena executed by Pedicini,
in connection with Telfair's defense, while Pedicini was representing Telfair in Telfair-WJM. See
id. at 37-38.
B. The Court's Prior Order and Telfair's Instant Motion
On August 9, this Court issued an order ("August
Order") that echoed Judge Martini's prior ruling, i.e., that
Telfair lacked standing to bring civil rights or habeas claims on behalf of
Gatling. See Instant Matter, Docket Entry No. 4; accord Telfair-WJM,
Docket Entry No. 60. In response, Telfair submitted his instant two-part Motion
seeking reconsideration of this Court's August Order. See Instant
Matter, Docket Entries Nos. 5 and 6. The total *557 volume of Telfair's Motion is two hundred and seventy two pages, see
id., rendering this Court's detailed discussion of the content of that
submission unwarranted in light of the considerations dictated by judicial
economy and the already substantial length of this Opinion. Therefore, it shall
suffice to state that Telfair, in no ambiguous terms, asserted that in this
action he was aiming to "challenge
his continued detention," see Instant Matter, Docket Entry No. 5,
at 3, the propriety of Gatling's re-arrest, see id., and also to raise
claims of a civil rights nature[17]
on the basis of the doctrine of respondeat
superior. See id. at 5. The remainder of his
submission presented, essentially, a repeat of the statements already made
during Telfair's first two rounds of filing executed
in this matter, with addition of: (a) Fifth Amendment allegations substantively
indistinguishable from those made in Telfair's recent
filings executed in Telfair-WJM; and(b)
recitals of the claims dismissed with prejudice by Judge Martini in Telfair-WJM.
C. The Relief Sought by Telfair in
This Matter
Closing its overview of the submissions made by Telfair in
this matter, the Court finds it useful to quote the exact relief Telfair has
been seeking in this alleged attorney discipline action. Specifically, Telfair
requested:
1) A Hearing [En Banc] in order to
deter further personal and legal injury.
2) A Injunctive, Punitive,
declaratory judgment, In which to establish the
predicates that the action(s) of the respondent(s) violated the Constitutional
& Procedural right(s) of the grievant(s).
3) Such other relief as this
Tribunal deems just, proper, and equitable.
4) The Grievant(s) further request
appointment of [NEW] counsel and a New Judge to assist in this extreme
circumstance(s).
5) An order ENJOINING
("any") Harassment(s) or Retaliation(s) of Telfair, Gatling(s),
family members, and witnesses from ("any") Official(s) acting on an
individual or Official Capacity.
6) The aggrieved aim and purpose is
to obtain relief which would [expedite] the [petition for review] pursuant to 5
U.S.C.A. § 702-706 (emphasis on § 702 & 705) and to [enjoin or stay] the
prosecution of the aggrieved pending said review as a legally cognizable right.
7) The aggrieved motive(s) are to
[primarily] seek an investigation by the superior(s) of the respondent(s)
"sanctions," "declaratory," "injunctive" and
"punitive," decree or, in the alternative, the aggrieved especially
implores the honorable court to review the lawfulness of the previous/present
legality in its entirety to determine the appropriate administration of laws in
order to prevent the premeditated and/or post meditated obstruction of Justice
tantamount to the manifest [miscarriage of justice].
Instant Matter, Docket Entry No. 1, at 19 (capitalization,
brackets, parenthetical and quotation marks in original).[18]
*558 As detailed below, Telfair's Motion, same as his Form-I and Form-II, do not
warrant initiation of disciplinary proceedings or any other relief.
IV. TELFAIR'S APPLICATION IS NOT
A BONA FIDE DISCIPLINARY GRIEVANCE
A. The Bulk of Events Complained of
Was Not Performed By Counsel
A disciplinary proceeding may be conducted by this Court
only under the powers articulated in the preamble of Local Civil Rule 104.1,
which provides, in relevant part, that "[t]he Court, in furtherance of its
inherent power and responsibility to supervise the conduct of attorneys who
are admitted to practice before it or admitted for the purpose of a
particular proceeding ...." L. Civ. R. 104.1 (emphasis supplied).
Therefore, any grievance about ethics (or lack thereof) of a person who is not
an attorney admitted to practice in this District automatically falls outside
this Court's jurisdiction. See id. Consequently, the bulk of facts
alleged by Telfair cannot operate as a basis for any disciplinary proceeding in
this District, i.e., neither the circumstances of Telfair and Gatling's
arrests by the DEA agents and police officers, nor the actions undertaken (or
statements made) by jail officials where Gatling was employed (or by police
academy officials where Gatling was, seemingly, enrolled), that might have
played part in Gatling's decision to leave her employ or law enforcement
training, could fall within the scope of this Court's disciplinary review: this
is so simply because these DEA agents, police officers, jail officials, etc.
were not attorneys admitted to practice in this District.
Moreover, this Court holding a mandate equal to and in no way
exceeding those
held by Judges Cavanaugh, Martini or Wigenton, has no
authority to conduct any review of their decisions. Hence, any of Telfair's allegations associated with activities of persons
other than the prosecutors of Telfair and Gatling's criminal matters and their
defense counsel are of no relevance to the inquiry at hand.
B. Telfair's
Allegations Are a Mix of Civil Rights and Habeas Challenges
While Telfair packaged his allegations into the Form-I and
Form-II, each of which mimics a disciplinary grievance, and laced his
challenges with excerpts from the CJC and preprinted disciplinary forms
disseminated by appellate courts, these cosmetic alterations did not transform
his submissions into a bona fide disciplinary grievance: "[i]t is the [content of *559 the pleading] which defines the
nature of an action." Florida Dep't of State v.
Treasure Salvors, Inc., 458
U.S. 670, 706, 102 S.Ct. 3304, 73 L.Ed.2d 1057
(1982).
Here, Telfair's lists of remedies
requested in the Form-I and in his Motion (seeking to halt his and Gatling's
criminal proceedings, and damages from supervisory officials for alleged
constitutional violations), read jointly with his statements that, ultimately,
he is seeking release from confinement, unambiguously indicate that Telfair has
not submitted a true disciplinary grievance, since he is not interested
in the range of remedies a disciplinary proceeding could offer, e.g.,
censure of certain attorneys or a suspension of their privilege to appear
before this District Court in capacity of counsel, etc.[19]
Consequently, the instant matter cannot be qualified as disciplinary
proceedings; rather, it is a disguised attempt to relitigate,
before this Court, the matters that were adjudicated by other Judges in the
District.
In other words, to the extent Telfair wishes to challenge
his criminal conviction or his upcoming penal sentence, these challenges can be
raised only by means of direct appeal or by filing a habeas application,
pursuant to 28 U.S.C. § 2255. Judge Cavanaugh already explained this very point
to Telfair in Telfair-DMC-Civil. See Telfair-DMC-Civil, Docket Entry No.
2 (construing Telfair's statements as a prematurely
filed § 2255 habeas petition).
Analogously, Telfair's civil
challenges cannot be raised in this action. Telfair's
challenges based on the theory of respondeat
superior were already dismissed by Judge Martini in his decision addressing
Tandy and McAleer's motion for summary judgment. See
Telfair-WJM, Docket Entry No. 41. It has become undisputable that the same
dismissal would be warranted, under the holding of Iqbal,
with regard to any official implicated solely on the grounds of his/her
supervisory position. Moreover, Telfair's claims
against his defense counsel were already conclusively dismissed by Judge
Martini upon his initial screening of Telfair's
complaint, see Telfair-WJM, Docket Entry No. 14, and cannot be relitigated in this or any other matter. See Telfair-SDW,
Docket Entry No. 2 (explaining to Telfair that he cannot maintain duplicative
legal actions). Finally, the same applies to Telfair's
claim asserting malicious prosecution: this cause of action was stayed by Judge
Martini, subject to Telfair's attaining the outcome
meeting the requirements posed by the elements of this tort,[20]see
id., and cannot be re-raised by initiation of an effectively duplicative
proceeding. See Telfair-SDW, Docket Entry No. 2.[21]
*560 C. Telfair Has No Standing to
Assert Wrongs Committed Against Gatling
As noted above, the bulk of Telfair's
claims assert facts related to Gatling, not Telfair. However, under the
"next friend" doctrine, standing is allowed to a third person only if
this third person could file and pursue a claim in court on behalf of someone
who is unable to do so on his/her own. The doctrine
dates back to the English Habeas Corpus Act of 1679 and provides a narrow
exception to the "case or controversy" requirement set forth in the
Article III of Constitution. See Whitmore v. Arkansas, 495 U.S. 149,
154-55, 110 S.Ct. 1717, 109 L.Ed.2d
135 (1990).
The Whitmore Court set out two requirements that
should be met by the one seeking to qualify for "next friend"
standing: (a) "the `next friend' must be truly dedicated to the best
interests of the person on whose behalf [(s)he] seeks to litigate" (and it
has been further suggested that a "`next friend' must have some significant
relationship with the real party in interest"); and (b) "the `next
friend' must provide an adequate explanation such as inaccessibility, mental
incompetence, or other disability why the real party in interest cannot appear
on his [/her] own behalf to prosecute the action." Id. at 163-64,
110 S.Ct. 1717. The burden is on the "next
friend" to justify his/her status and, thereby, to obtain the jurisdiction
of the federal courts. See id. at 164, 110 S.Ct. 1717.
In view of these requirements, this Court cannot recognize
Telfair as Gatling's "next friend." Even if this Court were to
hypothesize that Telfair and Gatling's relationship somehow renders Telfair
"truly dedicated to the best interests" of Gatling (which, the Court
notes in passing, is highly questionable granted that Telfair sought abode at
Gatling's residence knowing that he was subject to arrest warrant, and Gatling
was informed of the same by the DEA agents, i.e., realizing that
Gatling's decision to give him shelter would expose her to criminal liability),
the Court would not be able to recognize Telfair as Gatling's "next
friend" simply because the second prong of Whitmore cannot be met
in the case at bar since: (a) Gatling's currently ongoing criminal proceedings
unambiguously indicate Gatling's full mental capacity; and (b) Telfair's assertions that Gatling experiences
"fears" of criminal prosecution and potential imprisonment simply do
not render Gatling legally incompetent.
D. Reconsideration of Conclusions
Reached in the August Order Is Unwarranted
Currently, Telfair seeks reconsideration of this Court's
August Order. However, a motion for reconsideration is a device of limited
utility. There are only four grounds upon which a motion for reconsideration
might be granted: (a) to correct manifest errors of law or fact upon which the
judgment was based; (b) to present newly-discovered or previously unavailable
evidence; (c) to prevent manifest injustice; and (d) to accord the decision to
an intervening change in prevailing law. See 11 Charles A. Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1
(2d ed.1995); see also Harsco Corp. v. Zlotnicki,
779
F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986) (purpose of motion for
reconsideration is to correct manifest errors of law or fact or to present
newly discovered evidence). "To support reargument,
a moving party must show that dispositive factual matters or controlling
decisions of law were overlooked by the court in reaching its prior
decision." Assisted Living Associates of Moorestown, L.L.C. v.
Moorestown Tp., 996 F.Supp.
409, 442 (D.N.J.1998).
*561 In contrast, mere disagreement
with the district court's decision is an inappropriate ground for a motion for
reconsideration: such disagreement should be raised through the appellate
process. See id. (citing Bermingham
v. Sony Corp. of America, Inc., 820 F.Supp. 834,
859 n. 8 (D.N.J.1992), aff'd, 37 F.3d 1485
(3d Cir. 1994); G-69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J.1990)); see also Drysdale v. Woerth, 153
F.Supp.2d 678, 682 (E.D.Pa. 2001) (a motion for
reconsideration may not be used as a means to reargue unsuccessful theories).
Consequently, "[t]he Court will only entertain such a motion where the
overlooked matters, if considered by the Court, might reasonably have resulted
in a different conclusion." Assisted Living, 996 F.Supp. at 442; see also
Continental Cas. Co. v. Diversified Indus., Inc.,
884 F.Supp. 937, 943
(E.D.Pa.1995) ("[M]otions for reconsideration
should be granted sparingly"); Edward H. Bohlin,
Co. v. Banning Co., Inc., 6
F.3d 350, 355 (5th Cir.1993) (a district court "has considerable
discretion in deciding whether to reopen a case under Rule 59(e)").
Here, two hundred seventy two pages of Telfair's
Motion do not state a single viable ground for reconsideration of the
conclusion reached in the Court's August Order. Indeed, Telfair's
voluminous Motion neither informs the Court of a manifest errors of law the
Court committed nor enlightens the Court about any intervening change in
prevailing law. Similarly, no statement made in the Motion indicates that the
Court erred in detecting the facts upon which the August Order was based, same
as no statement informs the Court of a newly-discovered
or previously unavailable evidence capable of changing the outcome of the
Court's analysis underlying in the August Order. Finally, while Telfair's Motion as was the case in his first two rounds of
filings in this matter (and the massive body of filings he made in Telfair-WJM
and Telfair-DMC) asserts that the fact and circumstances of his
or Gatling's prosecution amount to "manifest injustice," Telfair's statements to that effect are nothing but
rhetoric insufficient to warrant reconsideration within the meaning of the
standard set forth in case law elaborating on Rule 59(e).
In the context of a motion to reconsider, the term
"manifest injustice" "[g]enerally. . .
means that the Court overlooked some dispositive factual or legal matter that
was presented to it," Rose v. Alternative Ins. Works, LLC, 2007 WL 2533894,
at *1, 2007 U.S. Dist. LEXIS 64622, at *3 (D.N.J. Aug. 30, 2007), making the
definition an overlap with the prime basis for reconsideration articulated in Harsco,
that is, the need "to correct manifest errors of law or fact upon which
the judgment was based." Alternatively, the term "manifest
injustice" could be defined as "`an error in the trial court that is
direct, obvious, and observable.'" Tenn. Prot. & Advocacy, Inc. v.
Wells, 371
F.3d 342, 348 (6th Cir.2004) (quoting Black's Law Dictionary 974 (7th
ed.1999)). "[M]ost cases [therefore,] use the
term `manifest injustice' to describe the result of a plain error." Douglass
v. United Services Auto. Ass'n, 79
F.3d 1415, 1425 (5th Cir. 1996).
The fact that the litigant complains about his and,
moreover, someone else's ongoing criminal prosecution (e.g., on the
grounds of the litigant's belief that such prosecution is wrongful), does not
inject the danger of "manifest injustice" into the decision of the
court performing collateral review. This very issue has recently been addressed
by the Court of Appeals in Duran v. Thomas, 393 Fed. Appx. 3, 2010
WL 3374095, 2010 U.S.App. LEXIS
18069 (3d Cir.N.J. Aug. 27, 2010).
*562 In his civil action initiated in this District, Duran an
inmate whose criminal proceedings were underway sought,
just as Telfair here, release from confinement and immediate review of his
ongoing criminal prosecution; his application was based on his self-serving
assertion that his "criminal proceedings [were] `undertaken in bad faith'
and that his prosecutors [were] `harassing' him." Duran v. Thomas, 2010
WL 3283518, at *4, 2010 U.S. Dist. LEXIS 85014, at *12 (D.N.J. Aug. 18, 2010).
The District Judge in Duran denied Duran's application for collateral
review and upon Duran's filing of a voluminous motion for
reconsideration (making arguments substantively indistinguishable from those
raised by Telfair in the Motion at bar) denied Duran's request for reconsideration in
the sense of re-dismissing Duran's pleadings. See id. at
*5, 2010 U.S. Dist. LEXIS 85014 at *19. Duran appeal. See
Duran, 393 Fed.Appx. 3, 2010 WL 3374095, 2010 U.S.App. LEXIS 18069. Addressing Duran's appellate application, the
Court of Appeal observed that "there [was] nothing in the nature of
Duran's [accusations asserting] warrantless arrest for a controlled substances
violation [and in his claims that his prosecution was malicious] to qualify
[Duran's application for immediate] relief." Duran, 393 Fed.Appx. at
5, 2010 WL 3374095, at *2, 2010 U.S.App. LEXIS 18069, at *5.
In light of the foregoing, this Court, being presented with
no valid ground to reconsider the conclusion reached in the August Order, will
once again dismiss Telfair's submissions, while
stressing that the actual nature of these submissions has nothing in common
with a bona fide disciplinary grievance. Consequently:
(a) Telfair's habeas challenges,
to the degree such challenges were intended, if at all, will be dismissed as
either a premature § 2255 application (which, upon ripening, should be brought
before Judge Cavanaugh), or as an appellate application challenging Telfair's conviction, over which this Court has no
jurisdiction;
(b) Telfair's civil rights
challenges, to the degree such challenges were intended, if at all, will be
dismissed as duplicative of those already dismissed, stayed or pending before
Judge Martini in Telfair-WJM; and
(c) Telfair's habeas or civil
rights challenges asserting the wrongs allegedly suffered by Gatling, to the
degree such challenges were intended, if at all, will be dismissed for lack of
standing.
V. TELFAIR'S ALLEGATIONS DO NOT
WARRANT ANOTHER OPPORTUNITY TO SUBMIT A DISCIPLINARY GRIEVANCE
In light of the fact that Telfair submitted a disciplinary
grievance, i.e., an application invoking this Court's inherent powers
and responsibilities, see L. Civ. R. 140.1 (preamble), the Court's
analysis would be incomplete without a determination of whether the Court will
grant Telfair an opportunity to cure the deficiencies of his recent submissions
in this matter by filing a bona fide disciplinary grievance alerting
this Court to unethical conduct of a member of the bar admitted to practice in
this District. See Iowa Supreme Court Atty. Disciplinary Bd. v. McGrath,
713
N.W.2d 682, 693 (Iowa 2006) (discussing the propriety of leave to amend a
disciplinary grievance).
As the discussion below illustrates, a grant of such
opportunity appears unwarranted since those scarce facts (that are scattered
among Telfair's voluminous rhetorical statements)
unambiguously indicate that no initiation of a disciplinary investigation is
warranted.
A. The Relevant Local Rules
Local Civil Rule 103.1 provides, in relevant part, that
"[t]he Rules of Professional *563 Conduct of the American Bar Association[,] as revised by the New Jersey Supreme Court[,]
shall govern the conduct of the members of the bar admitted to practice [in
this District], subject to . . . modifications [ensuing from] federal
statute[s], regulation[s], court rule[s] or [applicable case law]." L. Civ. R. 103.1(a). Its companion provision, Local Civil
Rule 104.1, governs the matters of attorney discipline, see L. Civ. R.
104.1, covering a multitude of topics, out of which two appear relevant, that
is, "Standards for Professional Conduct," see L. Civ. R.
104.1(d), and "Disciplinary Proceedings." See L. Civ. R.
104.1(e).
The latter expressly establishes this Court's jurisdiction
to exercise disciplinary supervision of "[e]very attorney authorized to
practice law or appearing before this Court," L. Civ. R. 104.1(e) (1), and
clarifies, in relevant part, that,
[w]hen . . . allegations of
misconduct [by] an attorney . . . come to the attention. . . of this Court, . .
. the Chief Judge . . . may refer the matter to the appropriate State disciplinary
body or, if the Chief Judge concludes that further investigation is warranted,
. . . direct the Clerk to refer the matter [for investigation] to an attorney .
. . admitted to practice before this Court . . . in order to determine whether
a formal order to show cause should issue.
L. Civ. R. 104.1(e)(2).
B. New Jersey System of Attorney
Discipline
Since Local Civil Rule 104.1(e)(2)
establishes this Court's authority to "refer the matter to the appropriate
State disciplinary body," id., a brief discussion of New Jersey
disciplinary system appears warranted.
At the state level, attorney discipline is administered by
the Office of Attorney Ethics ("OAE"), which is "the
investigative and prosecutorial arm of the Supreme Court of New Jersey [that]
manages 18 district ethics committees and . . . handles serious, emergent and
complex disciplinary prosecutions." See http://www.judiciary.
state.nj.us/oae/index.htm. The home webpage of the
OAE also clarifies that: (a) "[t]he attorney disciplinary process is
usually begun by the filing of an Attorney Grievance form with the Secretary of
one of the Supreme Court's 18 district ethics committees;"[22]
and (b) "discipline can range from an admonition, the least serious
discipline, to a reprimand, censure, suspension from practice, or permanent
disbarment from practice." See id., see also http:/
/www.judiciary.state.nj.us/oae/ atty_disc/atty_disc.htm
(explaining that attorneys "who violate the[ ]
standards for professional conduct are [only subject to such measures as] discipline,
ranging from admonition to disbarment"). The OAE's website also states
that:
[a]ll lawyers [practicing in the State of New Jersey] obligate
themselves to . . . abide by the Rules of Professional Conduct adopted by the
Supreme Court of New Jersey. Those who violate these standards . . . are
subject to discipline. . . . Because disciplining a lawyer is a serious matter,
it takes . . . proof of unethical conduct [ ] to justify disciplinary action.
[Thus, a] disagreement about how a case should be handled or
should have been handled does not *564 constitute unethical conduct,
even if the outcome of the case is disappointing [for the lawyer's client]. A
mistake does not necessarily constitute unethical conduct either[:]
. . . a simple mistake or error in judgment by itself is not unethical conduct.
[Indeed, t]here [might be] situations that a client
may find most annoying. . . that [would] not constitute unethical conduct. An
example would be the lawyer's failure to consult with the client prior to writing
every letter or prior to filing every document in the client's case, or . . .
lawyer's failure to respond to all of the client's telephone calls inquiring
about the progress of the case. . . . [Moreover,] the disciplinary process
cannot correct a lawyer's personality problems. [Therefore, a]llegations that a lawyer was rude, used bad language
[or akin] cannot . . . be investigated by the disciplinary system.
http://www.judiciary.state.nj.us/oae/atty_
disc/atty_disc.htm (emphasis supplied).
C. Telfair's
Claims Merit No OAE Referral or Investigation in this District
As noted supra, Telfair's
Form-I (same as his Form-II) informs this Court that Telfair grieves about the
conduct of the entire "Office of the U.S. Attorneys' the Agent(s) for the
Government" and also about the conduct of all "Defense
Counselor(s)" who, presumably, are admitted to practice in this District. See
Instant Matter, Docket Entry No. 1, at 4. However, introducing logic into Telfair's designation of responding parties, this Court
construes Telfair's overly expansive designation as a
reference to: (a) Telfair's defense counsel engaged
during the prosecution of Telfair-DMC; and (b) those Assistant United
States Attorneys who have been prosecuting Telfair-DMC and Gatling.
The Court, therefore, assesses Telfair's
claims accordingly and begins its analysis with the determination as to whether
this matter should be referred to the OAE.
1. The Option of Referring Telfair's Claims to the OAE Is Not Viable
As noted supra, Telfair's
Form-II consists of a slightly altered replication of his Form-I and numerous
attachments. Two of these attachments replicate letters from Mss. Maureen G.
Bauman and Paula T. Granuzzo; both these letters are
addressed to Mr. Jack Jay Wind, the Secretary for the VI District Ethics
Committee. See Instant Matter, Docket Entry No. 2, at 36 and 39 (dated,
respectively, March 18, 2010, and April 21, 2009). Granuzzo's
April 21, 2009, letter informed Wind of Telfair's
"desire to file an ethics grievance against two attorneys," namely, Telfair's then-already-dismissed defense counsel, Bergrin and Kimball,[23]see id. at 39, while Bauman's letter informed Wind of Telfair's *565 same desire as to Pedicini.[24]See
id. at 36. Bauman and Granuzzo's
letters also indicated that: (a) Telfair filed his grievances against Bergrin, Kimball and Pedicini in
the wrong Ethics Districts of the OAE; see id. at
36, 39; and (b) Telfair's grievances were forwarded,
by Bauman and Granuzzo, to the correct Ethics
District for Wind's "review [on merits] and, if appropriate, docketing and
processing." See id.
In addition, Telfair's other
Form-II attachment replicates one more letter from Granuzzo;
that other Granuzzo's letter seems to refer to a
different set of grievances, which Telfair filed with the OAE apparently
sometime prior to July 17, 2009; it appears that this set of grievances
asserted professional misconduct by Messrs. Minish
and Matey, i.e., by the prosecutors who at that
time were representing the United States in Telfair-DMC.[25]See
id. at 41 ("Granuzzo
Letter"). The Granuzzo Letter
reads, in pertinent part, as follows:
[The OAE] is in receipt of your
grievance forms you have filed against Joseph N. Minish,
Esq. and Paul B. Matey, Esq. Please be advised that
the Supreme Court of New Jersey has established a policy of not considering any
grievance received from a defendant in a criminal matter or person convicted of
a crime, whether it alleges prosecutorial misconduct against the attorney who
prosecuted such person, ineffective assistance of counsel by defense counsel or
other unethical conduct by an attorney arising out of the criminal case until
all available appellate remedies have been exhausted or until the time [to seek
appellate review] has expired.
Id. (citing
N.J. Court R. 1:20-3(f)).
Thus, the record as it is presented by the attachments to the
Form-II suggests two possible scenarios, pursuant to
which:
(a) all Telfair's
grievances filed with the OAE (that is, grievances filed against any defense
counsel and against any prosecutor) would necessarily be subject to a certain
OAE blanket policy, which bars screening on merits and discretional docketing.[26]
If so, this *566 Court's exercise of the referral-to-the-OAE option provided to
the Court by the language of this District's Local Civil Rule 104.1(e) would,
facially, be a non sequitur since the OAE blanket policy bar would
effectively nullify any value of this Court's referral for years to come (that
is, until Telfair's direct appeal and collateral
review under § 2255 either take full course or become precluded by expiration
of applicable limitations periods), hence, transforming the Court's referral of
this matter to the OAE into a hollow exercise in etiquette; and
(b) Telfair's grievances against some
counsel involved in Telfair-DMC and Gatling might be declined
from docketing by the OAE in its discretion, while Telfair's
grievances against other counsel involved in the same criminal matters
might, nonetheless, be examined by the OAE on merits in its discretion (and
declined docketing or proceeded to investigation according to the merit
determinations made).[27]Compare
Instant Matter, Docket Entry No. 2, at 39 to id. at 41 (Granuzzo's April 21, 2009, letters forwarding Telfair'
grievances against Bergrin and Kimball for Wind's
screening on merits but informing Telfair, on July 17, 2009, that Telfair's grievances against Minish
and Matey would not be docketed). However, if so,
this Court's reference of Telfair's submissions filed
in the instant matter for the AOE's review would be facially superfluous simply
because: (i) the AOE was already presented with the
entire panoply of Telfair's allegations against his
prosecutors and defense counsel, reached or is
in the process of reaching its discretionary determinations as to whether
or not to docket Telfair's *567 grievances, and needs
no reminders of the same from this Court; and, in any event (ii) this Court has
no assurances that, under the OAE's discretionary policy, Telfair's
grievances would even be screened on merits.
Concluding that the option of referring Telfair's
allegations to the OAE would result in a superfluous exercise, this Court being
mindful of its ongoing responsibility to supervise the conduct of attorneys who
are admitted to practice in this District, see L. Civ. R. 103.1 finds
it proper to conduct its own review of the merits of Telfair's
allegations, in accordance with the standard set forth in the Rules of
Professional Conduct of the ABA ("RPC-ABA"), as modified by
applicable federal statutes/regulations, interpreted by case law and affected
by relevant rules of federal procedure. See L. Civ. R. 103.1(a).
2. Telfair's
Allegations Do Not Merit a Disciplinary Investigation
a. Telfair's
Allegations Against His and Gatling's Prosecutors
Telfair's allegations against his and Gatling's prosecutors could be
grouped into five categories: (a) the bulk of statements, which effectively
express Telfair's opinion that the prosecutors are
"harassing" him and Gatling by aggressively prosecuting the charges
in Telfair-DMC and Gatling; (b) allegations that the prosecutors
exposed Telfair to the danger of "double jeopardy" by filing superceding indictments; (c) claims based on the timing of
the filing of complaint in Gatling and on the fact that the in-court
parts of Gatling's criminal proceedings are underway; and (d) assertions that
the prosecutors unduly capitalize of Gatling's "fears" of potential
incarceration or the length of such incarceration by
offering Gatling an opportunity to avoid the uncertainties of a criminal trial
by taking a guilty plea that encompasses a prosecutorial recommendation of a
reduced sentence; and (e) claims that, at the outset of Telfair's
prosecution, the prosecutors unduly capitalized on Telfair's
alleged affections for Gatling. The Court will address these allegations seriatim.[28]
*568 i.
Zealous Prosecution
Telfair's main group of contentions (asserting that the prosecutors
of his and Gatling's criminal matters violated their professional
responsibilities by zealously and diligently pursuing the charges against
Telfair and Gatling) is facially without merit.[29]
Indeed, such prosecutorial activities were in compliance with ethical
obligations. In contrast, prosecutorial laxness would have been a violation of
the prosecutors' professional responsibilities to their client, the United
States. See RPC-ABA, preamble, parts (2) and (4) ("As a
representative of clients, . . . a lawyer [must] zealously assert[ ] the
client's position under the rules of the adversary system"; "In all
professional functions[,] a lawyer should be competent, prompt and
diligent"); RPC-ABA, D.R. 1.3 ("A lawyer shall act with reasonable
diligence and promptness in representing a client"); PPC-ABA, D.R. 1.3,
comments 1 and 3 ("A lawyer should pursue a matter on behalf of a client
despite opposition, obstruction or personal inconvenience to the lawyer, and
take whatever lawful and ethical measures are required to vindicate a client's
cause or endeavor. A lawyer must also act with commitment and dedication to the
interests of the client and with zeal in advocacy upon the client's behalf. . .
. Perhaps no professional shortcoming is more widely resented than
procrastination"). Consequently, this line of Telfair's assertions warrant neither a disciplinary
investigation nor even a lengthy discussion.
ii. "Double Jeopardy"
Claims
Telfair's "double jeopardy" allegations (asserting that the
prosecutors violated the prescripts of the Double Jeopardy Clause by filing superceding indictments) are equally without merit.
The Double Jeopardy Clause forbids
that "any person be subject for the same offence to be twice put in
jeopardy of life or limb." U.S. Const. amend. V.
Under that clause, a defendant has a "valued right to have his trial
completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684,
689, 69 S.Ct. 834, 93 L.Ed.
974 (1949) . . . . Protections against double jeopardy are ancient and we
interpret the Double Jeopardy Clause in light of "its origin and the line
of its growth." Green v. United States, 355 U.S.
184, 199, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)
(Frankfurter, J., dissenting) (quoting Gompers v. United States, 233 U.S.
604, 610, 34 S.Ct. 693, 58 L.Ed.
1115 (1914)). The Double Jeopardy Clause's prohibition of multiple trials
evolved in reaction to "a time when English judges served the Stuart
monarchs by exercising a power to discharge a jury whenever it appeared that
the Crown's evidence would be insufficient to convict." Washington
[v. Washington], 434 U.S. [497], at 507, 98 S.Ct.
824[, 54 L.Ed.2d 717 (1978)]. Accordingly, a defendant may *569 not be reprosecuted where a first trial has ended with an
improperly declared mistrial. United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed.
165 (1824).
United States v. Rivera,
384
F.3d 49, 53-54 (3d Cir.2004) (footnotes omitted, emphasis supplied).
Since neither Telfair nor Gatling have had a superceding trial or even a criminal charge filed
upon conclusion of the first trial, the concept of double jeopardy is
facially inapplicable to Telfair's claims. At most,
these allegations if construed with creativity could
be read as Telfair's desire to assert a claim of
prosecutorial vindictiveness. However, even so construed, Telfair's
allegations are facially without merit, since the government's initial decision
to charge does not limit the government's ability to seek a superseding
indictment charging another offense. See United States v. Sarracino, 340 F.3d
1148 (10th Cir.2003), cert. denied sub nom. Cheresposy
v. United States, 540 U.S.
1131, 124 S.Ct. 1105, 157 L.Ed.2d 935 (2004).
Moreover, "a prosecutor may threaten to charge [by means of superceding indictment,] a greater offense if a defendant
will not plead guilty to a lesser one, as long as the prosecutor has probable
cause to believe that the defendant committed the greater offense." Id.
(citing Bordenkircher v. Hayes, 434 U.S.
357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)); accord
PFP, ¶ 9-27.230(6) (clarifying that, with regard to the issue of selecting the
particular charges to be fostered by the prosecution, DOJ attorneys should
consider the defendant's "willingness to cooperate in the investigation or
prosecution of others"). Therefore, Telfair's
references to his superceding indictments cannot
warrant any disciplinary investigation in this District.
iii. Timing of Gatling's Prosecution
and In-Court Proceedings
Another group of Telfair's
allegations aims to assert that Gatling's prosecutors violated their professional
responsibilities by: (a) initiating Gatling's proceedings in the context of
what Telfair labels as wrongful arrests[30]
and then conducting the out-of-court parts of Gatling's prosecution with what
Telfair qualifies as an undue delay; or (b) proceeding with the in-court part
of Gatling's prosecution too swiftly for Telfair's
taste. Same as Telfair's allegations discussed in the
two previous subsections of this Opinion, this group of allegations is without
merit.
The decision as to the timing of initiation of a criminal
prosecution falls within prosecutorial discretion. This issue was expressly
addressed by the Supreme Court, which observed that
[i]t
requires no extended argument to establish that prosecutors do not deviate from
"fundamental conceptions of justice" when they defer seeking
indictments until they have probable cause to believe an accused is guilty;
indeed it is unprofessional conduct for a prosecutor to recommend an indictment
on less than probable cause. [See] ABA Code of Professional Responsibility
DR 7-103(A); ABA Project on Standards for Criminal Justice, The
Prosecution Function § 3.9 (App. Draft 1971). It should be equally obvious that
prosecutors are under no duty to file charges as soon as probable cause exists
but before they *570 are satisfied they will be able to establish the suspect's
guilt beyond a reasonable doubt. To impose such a duty
"would have a deleterious effect both upon the rights of the accused and
upon the ability of society to protect itself," United States v. Ewell, [383 U.S. 116,] 120, 86 S.Ct.
773[, 15 L.Ed.2d 627 (1966)]. From the perspective of potential
defendants, requiring prosecutions to commence when probable cause is
established is undesirable because it would increase the likelihood of
unwarranted charges being filed, and would add to the time during which
defendants stand accused but untried. [Indeed, t]o the
extent that the period between accusation and trial has been strictly limited
by legislative action, see, e.g., Speedy Trial Act . . ., 18 U.S.C. §
3161, compelling immediate prosecutions upon probable cause would not add to
the time during which defendants stand accused, but would create a risk of
guilty persons escaping punishment simply because the Government was unable to
move from probable cause to guilt beyond a reasonable doubt in the short time
available to it. . . . .
[Moreover, f]rom
the perspective of law enforcement officials, a requirement of immediate
prosecution upon probable cause is equally unacceptable because it could make
obtaining proof of guilt beyond a reasonable doubt impossible by causing
potentially fruitful sources of information to evaporate before they are fully
exploited. Cf. United States v. Watson, 423 U.S.
411, 431, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)
(Powell, J., concurring) ("Good police practice often requires postponing
an arrest, even after probable cause has been established, in order to place
the suspect under surveillance or otherwise develop further evidence necessary
to prove guilt to a jury"). And from the standpoint of the courts, such a
requirement is unwise because it would cause scarce resources to be consumed on
cases that prove to be insubstantial, or that involve only some of the
responsible parties or some of the criminal acts. Thus, no one's interests
would be well served by compelling prosecutors to initiate prosecutions as soon
as they are legally entitled to do so. See also Hoffa v. United States, 385 U.S.
293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966),
quoted in United States v. Marion, 404 U.S. [307], at 325 n. 18, 92 S.Ct. 455[, 30 L.Ed.2d 468 (1971)] [(stating that
"t]here is no constitutional right to be arrested. The police are not
required to guess at their peril the precise moment at which they have probable
cause to arrest a suspect, risking a violation of the Fourth Amendment if they
act too soon, and a violation of the Sixth Amendment if they wait too long. Law
enforcement officers are under no constitutional duty to call a halt to a
criminal investigation the moment they have the minimum evidence to establish
probable cause, a quantum of evidence which may fall far short of the amount
necessary to support a criminal conviction"[).]
United States v. Lovasco, 431 U.S.
783, 791, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)
(footnoted 9 to 11, and footnote 13 are incorporated in the main text); see
also PFP, ¶ 9-27.200, comment ("Merely because this requirement [of
probable cause] can be met in a given case does not automatically warrant
prosecution; further investigation may be warranted, and the prosecutor should
still take into account all relevant considerations"); accord id.
¶¶ 9-27.220 and 9-29.230 (noting that the issues associated with the decision
to initiate criminal prosecution are assessed in light of, inter alia, federal
law enforcement priorities, the nature and seriousness of the offense, the
deterrent effect of prosecution, the person's culpability in connection with *571
the offense and his/her history with respect to criminal activity, as well as
his/her willingness to cooperate in the investigation or prosecution of
others).
In light of these considerations, the timing of the
prosecutorial decision as to when to file a criminal complaint against Gatling
(which was filed a few months after Telfair's arrest
and, seemingly, in conjunction with Gatling's re-arrest) should not be
second-guessed by this Court and cannot provide this Court with a basis for a
disciplinary investigation.
Similarly, Telfair's assertions
that the in-court part of Gatling proceeding began "too soon"
after the filing of criminal complaint in Gatling does not provide a valid
basis for initiation of a disciplinary investigation. The criminal complaint
giving rise to Gatling was filed on March 9, 2007, and within
just four days Gatling was arrested and released on bail. See
Gatling, Docket Entries Nos. 1-5. Gatling's initial indictment was filed on
March 18, 2010, that is, three years later (hence, triggering the in-court part
of her prosecution), with Gatling applying for permission to plead guilty on
August 3, 2010, that is, four and a half months later. See Gatling,
Docket Entries Nos. 28, 33-37. This time line indicates, in no ambiguous terms,
that Telfair's claim of "unduly swift"
prosecution of Gatling is without merit; indeed, a prosecutor's attempts to
halt, obstruct or procrastinate Gatling could amount to a violation of
Gatling's right to a speedy trial (and, in addition, a violation of the
prosecutor's ethical obligations). See 18 U.S.C. § 3161(a) (directing
"set[ting] the case for trial on a day certain or [on] other short-term
calendar . . . so as to assure a speedy trial"); accord PFP ¶
9-27.420, comment 11 ("the attorney for the government should consider the
state of the criminal docket and the speedy trial requirements in the district
. . . and the work loads of prosecutors, judges, and defense attorneys in the
district"); cf. RPC-ABA D.R. 1.3, comment 3 ("no professional
shortcoming is more widely resented than procrastination"); RPC-ABA D.R.
3.2 and comment ("A lawyer shall make reasonable efforts to expedite
litigation consistent with the interests of the client . . .").
Consequently, Telfair's assertions
related to the timing of prosecutorial activities in Gatling do not
warrant this Court's initiation of a disciplinary investigation.
iv. Plea Offer
Next group of Telfair's
allegations is based on Telfair's speculations that
Gatling's prosecutors are unduly capitalizing on Gatling's "fears" of
imprisonment (or of a lengthy term of imprisonment). In making these
assertions, Telfair: (a) deduces his conclusion from the sole fact that the
prosecutors in Gatling offered Gatling a plea; and (b) accompanies his
deduction with his speculation that such prosecutorial plea offer must be a sign
of the prosecutor's "wedging" on Gatling's concern about the future
of her children in the event Gatling is imprisoned. In other words, Telfair
guesses that the prosecutorial offering of these favorable considerations must
be an ethical violation on the part of the prosecutors simply because the
attractiveness of the offer could be preventing Gatling from focusing, to the
degree Telfair would prefer, on the possibility of obtaining full acquittal at
trial.
Telfair's argument is without merit. Taken to its logical conclusion,
Telfair's position suggests that any plea offer is
ethical only if it: (a) offers the defendant withdrawal of all charges; or (b)
virtually removes the defendant's incentive to take a guilty plea by offering
the defendant the very same penal consequences that the defendant would get as
a result of being convicted at his/her criminal trial on all charges and
sentenced to the maximum sentence applicable.
*572 The "(a)" alternative of Telfair's
position is flawed both logically and legally because a plea agreement, by
definition, cannot offer withdrawal of all charges[31] and, in
addition, would be contractually invalid for lack of consideration on the part
of the defendant.[32] Telfair's
"(b)" argument fares no better, analogously containing logical and
legal flaws, since any plea agreement, by definition, envisions a
prosecutor-created incentive for the defendant to accept the plea, see
United States v. Wright, 289 Fed.Appx. 543, 546
(3d Cir.2008) ("government [has a] legitimate interest in providing an incentive
for defendants to plead guilty, [which is] enabling the government to more
efficiently prosecute its cases") (emphasis supplied), and without
such incentive any plea agreement would be contractually
invalid for lack consideration on the part of the government.
Under Boykin v. Alabama, 395 U.S. 238,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), its progeny,
and Rule 11 of the Federal Rules of Criminal Procedure, a guilty plea is
invalid only if it is not the result of the defendant's knowing and voluntary
waiver of his/her rights (or if the offered plea has no factual basis). Here,
Telfair seems to suggest that Gatling's decision to accept the plea offer
cannot be voluntary simply because Gatling's train of thought might have
shifted from sole hopes for acquittal at trial to factoring in and weighing
upon the cost-benefit analysis of the plea agreement offered. Such position is
facially without merit.
[W]hen we . . . considered the
meaning of a "voluntar[iness" of a] guilty plea, we
[utilized] the standards of "voluntariness" developed in the
coerced-confession cases. See Brady v. United States, 397 U.S.
742, 749, 90 S.Ct. 1463, 25
L.Ed.2d 747 [(1970)]. [The relevant case law] yield[s] no talismanic
definition of "voluntariness," mechanically applicable to the host of
situations where the question has arisen. "The notion of `voluntariness,'"
Mr. Justice Frankfurter once wrote, "is itself an amphibian." Culombe
v. Connecticut, 367 U.S.
568, 604-605, 81 S.Ct. 1860, 6 L.Ed.2d 1037
[(1961)]. It cannot be taken literally to mean a "knowing"
choice. "Except where a person is unconscious or drugged or otherwise
lacks capacity for conscious choice, all [his/her] statements even
those made under brutal treatment are `voluntary' in the sense of representing a
choice of alternatives. On the other hand, if `voluntariness'
incorporates notions of `but-for' cause, the question should be whether the
statement would have been made even absent inquiry or other official action.
Under such a test, virtually no statement would be voluntary because very few
people [make] statements in the absence of official action of some kind."
Bator & Vorenberg, Arrest, Detention, Interrogation *573 and the Right to Counsel: Basic
Problems and Possible Legislative Solutions, 66 Col. L.Rev.
62, 72-73; see also 3 J. Wigmore, Evidence §
826 (J. Chadbourn, rev.1970). It is thus evident that neither linguistics nor
epistemology will provide a ready definition of the meaning of
"voluntariness." Rather, "voluntariness" has reflected an
accommodation of the complex of values implicated [by the process of examining
the defendant's options].
Schneckloth v. Bustamonte, 412 U.S.
218, 224-25, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)
(footnotes 6 and 7 incorporated into the main text, parenthetical quotation
omitted); see also Brady, 397 U.S. at 757, 90 S.Ct.
1463 ("The voluntariness of [the defendant's] plea can be determined only
by considering all of the relevant circumstances surrounding it. One of
these circumstances was the possibility of a heavier sentence following
a guilty verdict after a trial. It may be that [the defendant], faced with a
strong case against him and recognizing that his [/her] chances for acquittal
were slight, preferred to plead guilty and thus limit the penalty . . . rather
than to elect a jury trial which could result in a [heavier] penalty. But even
if we assume that [the defendant] would not have pleaded guilty except for
[his/her fears of a heavier] penalty . . ., this assumption merely identifies
the penalty provision as a `but for' cause of his plea [and] does not
necessarily [mean] that the plea was coerced and invalid as an involuntary
act") (citing Haynes v. Washington, 373 U.S. 503,
513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Leyra v. Denno, 347 U.S. 556,
558, 74 S.Ct. 716, 98 L.Ed.
948 (1954), footnote omitted, emphasis supplied); accord PFP, 9-27.430,
comments 1-3 (outlining the considerations underlying the choice of incentives
a prosecutor may ethically offer to defendant).
Here, the fact that the plea agreement offered by Gatling's
prosecutors contained incentives in the form of a lesser charge and
prosecutorial recommendation of a lesser penalty could
not render Gatling's process of considering that offer "involuntary"
under the holdings of Schneckloth and Brady.
Indeed, it was proper for Gatling to factor in the values of the plea bargain
offer into her considerations, same as it was proper for her to conduct her
analysis in the context of the impact her potential conviction at trial (and
the possibility of imposition of the maximum applicable prison sentence) might
have on her children. The very same considerations had to be entertained
by Gatling's prosecutors under PFP 9-27.430, comment 3, which states that
"the prosecutor should take into account the purposes of sentencing, the
penalties provided in the applicable statutes (including mandatory minimum
penalties), the gravity of the offense, any aggravating or mitigating factors,
and any post conviction consequences to which the defendant may be subject."
Thus, while it was Gatling's right to accept or reject the
terms of the offered plea agreement, the very fact of the prosecutors' making
an attractive plea offer cannot be construed as an unethical conduct. In light
of the foregoing, Telfair's assertions suggesting
that Gatling's prosecutors violated their ethical obligations by offering, for
Gatling's considerations, terms more favorable than the outcome Gatling might
be facing upon losing her criminal trial, cannot warrant this Court's
initiation of a disciplinary investigation.
v. Claims that the Prosecutors Use
Gatling as "Leverage"
Two cryptic statements made by Telfair seem to assert that
the prosecutors unduly capitalized on his affections for Gatling. See
Form-I, at 5 and 13 (asserting that his arrest involved "implementation of
excessive force using Gatling as collateral" and that "[t]he
derivative tort, ex post facto, *574 and the ex delicto stems from Gatling being used as collateral and is
now being used as a unilateral punishment for [Telfair] where the government is
trying to dissolve Gatling's litigation").
While the matters associated with Telfair or Gatling's
arrests by the DEA agents and Newark police have no relation to attorneys'
disciplinary proceeding, this Court construing Telfair's
assertions leniently presumes that Telfair: (a) either aims to
allege that his prosecutors offered him not to prosecute Gatling in
reciprocation for Telfair's cooperation with a
certain DEA investigation of drug trafficking or, alternatively, Telfair
speculates that the prosecutors might have been contemplating making such an
offer, and (b) concludes that the prosecutorial offer or a mere consideration
of making such offer was a violation of the rules of ethics. See id. at
19 (alleging that "Gatling blames [Telfair] for the action taken by the
arresting officials and the actions furthered by the government, where she have
been led to believe that if [Telfair] would have become an informant for the
government she would not be involve in this legal process").
If the Court deciphered Telfair's
claims correctly, these claims could be reduced to a statement that Telfair's prosecutors made or were considering making
Telfair a "packaged plea" offer. However,
neither prosecutorial consideration of such alternative nor an actual offer
violates ethical requirements. Addressing this issue, the Court of Appeals
explained that
[t]here is no question that package
deal plea bargains are constitutional. See [United States v.] Pollard, [959 F.2d 1011,] 1021-22 [(D.C.Cir.1992),]
(citations omitted). That conclusion is nearly axiomatic given the
nature of our criminal justice system, of which plea bargains are an
"essential part." Santobello [v. New York,] 404 U.S. [257,] 261, 92 S.Ct. 495[, 30 L.Ed.2d 427 (1971)]; see also Blackledge v. Allison, 431 U.S. 63,
71, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). "While
confronting a defendant with the risk of more severe punishment clearly may
have a discouraging effect on the defendant's assertion of his trial
rights," the Supreme Court has explained, "the imposition of these
difficult choices [is] an inevitable and permissible attribute of any legitimate system which
tolerates and encourages the negotiation of pleas." Bordenkircher [v. Hayes,
434 U.S.
357,] 364, 98 S.Ct. 663[, 54 L.Ed.2d 604 (1977)].
In turn, the Second Circuit has noted that, "since a defendant's plea is
not rendered involuntary because he enters it to save himself many years in
prison, it is difficult to see why the law should not permit a defendant to
negotiate a plea that confers a similar benefit on others." [United States v.] Marquez, 909 F.2d [738,] 742 [(2d Cir.1990)].
We agree and hold that package deal plea bargains are constitutionally
permissible. See [United States v.] Seligsohn, 981 F.2d
[1418,] 1426 [(3d Cir.1992)].
United States v. Hodge,
412
F.3d 479, 490 (3d Cir.2005); see also United States v. Nuckols, 606
F.2d 566, 569 (5th Cir.1979) ("[there is] no intrinsic constitutional
infirmity in broadening plea negotiations so as to permit third party
beneficiaries. It is generally within a prosecutor's discretion merely to
inform an accused that an implicated third person `will be brought to book if
[the accused] does not plead guilty. . . .' If [the] accused elects to
sacrifice himself for such motives, that is his choice") (quoting Kent
v. United States, 272
F.2d 795, 798 (1st Cir.1959), parenthetical removed).
While the Court of Appeals also guided that "package
deal pleas pose special risks," Hodge, 412 F.3d at 491, the special
risk referred-to in Hodge is present only in a scenario where the defendant
actually accepts a packaged plea benefitting another criminal defendant
(or a person who *575 might be validly charged with a criminal offense).[33]Accord
ALI Model Code of Pre-Arraignment Procedure, Commentary to § 350.3(d) (1975)
(explaining that the legal community is concerned with the possibility of
greater danger of coercion in such situations and, accordingly, special care
must be taken to ascertain the voluntariness of the guilty plea). Here,
however, Telfair did not accept any plea and was tried to and found
guilty by a jury. Therefore, the concerns associated with one's acceptance of a
package deal plea agreement are facially inapplicable to the issues at hand. See,
e.g., United States v. Castello, 724
F.2d 813, 815 (9th Cir.1984) (clarifying that the federal courts never went
so far as to conclude that "third party threats or promises are coercive per
se. Rather, they have held that the trial court should make a more careful
examination of the voluntariness of a plea when it is induced by such threats
or promises") (citing United States v. Usher, 703
F.2d 956, 958 (6th Cir.1983); Harman v. Mohn,
683
F.2d 834, 838 (4th Cir.1982); Nuckols,
606 F.2d at 569; and United States v. Tursi, 576
F.2d 396, 398 (1st Cir.1978)).
It follows that, even if this Court were to hypothesize that
the prosecutors did actually offer Telfair a plea agreement that envisioned
extra-lenient treatment of Gatling (including, potentially, non-prosecution of
Gatling) in exchange for Telfair's assistance to the
DEA, such offer could not violate the prosecutor's professional obligations. Accord
PFP, 9-27.230, comment 9 ("A person's willingness to cooperate in the
investigation or prosecution of others is another appropriate consideration in
the determination whether a Federal prosecution should be undertaken. Generally
speaking, a willingness to cooperate should not by itself relieve a person of
criminal liability. There may be some cases, however, in which the value of a
person's cooperation clearly outweighs the Federal interest in prosecuting
him/her"); PFP, 9-27.420(A)(1) and comment 1
("In determining whether it would be appropriate to enter into a plea
agreement, the attorney for the government should weigh all relevant
considerations, including [t]he defendant's willingness to cooperate in the
investigation or prosecution of others. . . . The defendant's willingness to
provide timely and useful cooperation as part of his/her plea agreement should
be given serious consideration. The weight it deserves will vary, of course,
depending on the nature and value of the cooperation offered and whether the
same benefit can be obtained without having to make the charge or sentence
concession that would be involved in a plea agreement"); PFP, 9-27.600 and
comment 1(d) ("Except as hereafter provided, the attorney for the
government may, with supervisory approval, enter into a non-prosecution
agreement in exchange for a person's cooperation when, in his/her judgment, the
person's timely cooperation appears to be necessary to the public interest and
other means of obtaining the desired cooperation are unavailable or would not
be effective. . . . [T]here may be cases in which it is impossible or
impractical to employ [other] methods . . . to secure the necessary information
or other assistance, and in which the person is willing to cooperate only in
return for an agreement that he/she [or another person] will not be prosecuted
at all for what he/she has done. [Such plea offers are proper if, inter
alia,] there [are] *576 no effective means of obtaining the person's timely
cooperation short of entering into a non-prosecution agreement [and the
cooperation is essential or valuable enough to justify such agreement]").
Therefore, Telfair's assertions that his prosecutors
offered (or considered offering) Telfair a plea agreement favorably affecting
Gatling's prosecution cannot merit initiation of a disciplinary investigation.
Since Telfair's allegations
neither suggest that his or Gatling's prosecutors committed violations of their
ethical obligations nor indicate that Telfair can elaborate on his already
submitted hundreds of pages by asserting facts capable of materially changing
this Court's analysis, the Court concludes that no disciplinary investigation
against Telfair and Gatling's prosecutors shall be initiated, and no leave to
amend Telfair's assertions against these prosecutors
shall be granted.
b. Telfair's
Allegations Against His Defense Attorneys
Certain parts of Telfair's
submissions are dedicated to Telfair's expressions of
displeasure with his defense counsel. The best this Court can surmise, it
appears that Telfair's displeasure ensues from the
fact that his defense attorneys did not submit every application (or did not
make every argument) that Telfair proposed. See Letter-Kimball
("I'm kindly warning you, to do what needs to be done so that all these
violations of law(s) can and will be addressed, rather by way of my present
appeal, or by starting to actually put up a fight in my case. . . . For
example: the word, supersede simply means, to make void, or repeal by taking
the place of. Now what is bothering me is that you have allowed this error in
facts and/or errors in laws to go uncontested, as it pertains to my now newly
2-count indictment which is a serious double jeopardy violation, and is the
reckless act of multiplicity in the first instance. . . . So I will keep this
easily to the point, . . . I want to see the documentations/credentials of all
parties being requested"); see also Telfair-DMC, Docket Entry No.
22 (Telfair's second letter to Kimball, which
includes Telfair's statement, "I do not want any
motions, briefs, etc., submitted to any courts without me having the chance to
review and/or my input!").
The Court, therefore, reads Telfair's
assertions as aiming to challenge his defense counsel's candor and professional
competence.[34] Specifically, it appears that Telfair *577 deduced
his counsel incompetence/insufficiency of candor from his counsel's decisions
not to file unspecified-by-Telfair all "pertinent motions," desired
by Telfair "memorandum in support of laws and erred fact" and
"appellate type motions," as well as such applications as
"motion to remove a.k.a.," "[an application based on the] silver
platter doctrine," "[an application based on the phrase] falsus in uno," "[an
application based on the phrase] mens rea," "[an application based on the] stare decisis doctrine," "[an] address [asserting] DEA
fraud & misconduct/fraud of the prosecutor(s)," "[an application
for] protection type order for the client & client's family," etc. See
Telfair-DMC, Docket Entry No. 30.
Telfair's allegations do not suggest that his defense counsel
violated their professional responsibilities. The RPC-ABA contains the
following pertinent guidance:
A lawyer shall provide competent
representation to a client. . . . A lawyer must. . .
act with commitment and dedication to the interests of the client and with zeal
in advocacy upon the client's behalf. A lawyer is not bound, however, to press
for every advantage that might be realized for a client. For example, a lawyer
may have authority to exercise professional discretion in determining the means
by which a matter should be pursued. . . . A lawyer shall not . . . assert. . . an issue . . . unless there is a basis in law
and fact for doing so that is not frivolous . . . . The advocate has a duty. . . not to abuse legal procedure. The law, both
procedural and substantive, establishes the limits within which an advocate may
proceed. . . . What is required of lawyers . . . is that they inform themselves
about the facts of their clients' cases and the applicable law and determine
[whether] they can make good faith arguments in support of their clients'
positions. . . . The [lawyer's] action is frivolous . . . if the lawyer is
unable either to make a good faith argument on the merits of the action taken
or to support the action taken by a good faith argument . . . . A lawyer shall not
knowingly . . . make a false statement of fact or law . . . .
RPC-ABA, D.R. Nos. 1.1, 1.2(a), 2.1, 3.1, 3.3(a)(1) and comments 1 and 2 to D.R. 3.1; accord
http://www.judiciary.state.nj.us/oae/ atty_disc/atty_disc.htm
(reflecting OAE guidance to litigants that their lawyers' "disagreement
about how a case should be handled or should have been handled does
not constitute unethical conduct, even if the outcome of the case is
disappointing [for the lawyer's client. Indeed, t]here
[might be] situations that a client may find most annoying . . . that [would]
not constitute unethical conduct. An example would be the lawyer's failure to
consult with the client prior to writing every letter or prior to filing every
document in the client's case").
Under that standard, it appears that the defense counsel's
compliance rather than noncompliance with Telfair's above-quoted demands would violate those
attorneys' obligation to not submit frivolous applications. Indeed, had Telfair's counsel submitted such documents as memoranda of
"erred facts" or "motion to remove a.k.a.," or applications
based on such Latin phrases as "falsus in uno," *578 "mens rea" and "stare decisis
doctrine," or a flood of interlocutory appeals, these attorneys could have
been rebuked for abuse of process and might have even faced court sanctions.[35]
Analogously, Telfair's demands that his counsel would
seek a "protection type order for the client & client's family"
were divorced from the realities of law.[36] By the same token,
while Telfair might have preferred to have certain physical evidence excluded,
his sheer preference for such a turn of his prosecution *579 could not qualify
as a valid basis for his counsel's motion to suppress.[37] Indeed,
if so, Telfair's defense counsel were obligated not
to submit such applications. See RPC-ABA, D.R. Nos. 2.1, 3.1, 3.3(a)(1)
and comments 1 and 2 to D.R. 3.1 (guiding against abuse of process and
submission of frivolous applications having no valid basis in fact or in law); accord
http://www. judiciary.state.nj.us/oae/atty_disc/atty_ disc.htm
("[the lawyer's] disagreement about how a case should be handled . . .
does not constitute unethical conduct, even if the outcome of the case is
disappointing [and the lawyer's client elects to attribute such outcome to] the
lawyer's failure to consult with the client prior to writing every letter or
prior to filing every document in the client's case").
In light of the fact that neither the content of Telfair's submissions made in this matter (including the
almost-three-hundred pages of his Motion) nor the records accumulated in Telfair-DMC
or Gatling suggest that, in the event he is given leave to file a bona
fide disciplinary grievance, Telfair would be able to articulate facts: (a)
omitted from his submissions made in this matter and in Telfair-DMC (as
well as in Telfair-WJM, Telfair-DMC-Civil and Telfair-SDW); and,
in addition (b) indicating that the initiation of a disciplinary investigation
might be warranted, this Court concludes that granting Telfair leave to file a bona
fide grievance would be futile.
Consequently and taking notice of Telfair's
request for "allow[ing him a basis] to file a
meaningful interlocutory appeal," Instant Matter, Docket Entry No. 6, at
53, this Court will: (a) re-dismiss civil and
habeas challenges; (b) decline initiation of a disciplinary investigation; and
(c) issue an Order conclusively withdrawing the Court's jurisdiction over the
instant matter, hence ripening Telfair's right to
appeal.
VI. TELFAIR'S LITIGATION PRACTICES WARRANT
AN ORDER OF PRECLUSION
While Telfair's assertions be they
construed as civil claims, habeas challenges or an ethics grievance warrant
no *580 relief or disciplinary investigation, Telfair's
litigation practices, as they were manifested in Telfair-DMC-Civil,
Telfair-WJM and Telfair-SDW, the instant matter and, especially, in Telfair-DMC,
cause this Court grave concern in light of Telfair's
apparent inability to control his litigation urges, which prompted Telfair's dozens of repetitive submissions of the same
documents, his numerous restatements of dismissed claims, his apparent
disregard for judicial decisions, and which, seemingly, fuel Telfair's propensity to draft overly-voluminous submissions
ridden with multitudes of references to legal concepts and Latin terminology
both inapplicable to Telfair's circumstances and
having no substance.
A. Abuse of Legal Process By Recreational Litigation
The courts in this nation stand ready to address challenges
brought by litigants in good faith. Which, in turn, means that the judiciary including the Judges in this District expect
litigants to treat their litigation with utmost seriousness, without abusing
legal process[38] and without
unduly testing of the resolve or common sense of the judiciary. Cf. Thornton
v. Micrografx, 878 F.Supp. 931, 938 (N.D.Tex.1995)
("The court refuses to leave its common sense at the courthouse
steps").
If confronted by repetitive, abusive litigants, the
judiciary takes measures to prevent recreational litigation.[39]
Indeed, it is well within the broad scope of the All Writs Act, 28 U.S.C. §
1651(a), for a district court to issue an order restricting meritless filing by
a litigant whose manifold submissions aim to subject either his/her adversaries
to unwarranted harassment or raise concern for maintaining order in the court's
dockets. See e.g., In re Oliver, 682
F.2d 443, 445 (3d Cir.1982) (citing Lacks v. Fahmi,
623
F.2d 254 (2d Cir.1980) (per curiam); Harrelson
v. United States, 613
F.2d 114, 115 (5th Cir. 1980) (per curiam);
and Clinton v. United States, 297
F.2d 899, 901 (9th Cir.1961), cert. denied, 369 U.S. 856, 82 S.Ct. 944, 8 *581 L.Ed.2d 14 (1962)). The Court of Appeals
for the Third Circuit guided that,
[i]n
appropriate circumstances, courts have gone beyond prohibitions against relitigation and enjoined persons from filing any further
claims of any sort without the permission of the court. In Rudnicki v. McCormack, 210 F.Supp. 905 (D.Mass.[D.R.I.]1962),
the court entered such an injunction after it found that, in the absence of a
court-ordered proscription, a plaintiff who had "repeatedly filed
groundless actions" against various state and federal officers will
continue to institute groundless and purely vexatious litigation both against
these defendants and against other judges and public officials, the effect of
which will be to cause further harassment of these officials, further expense
to the governments which they represent, and further burden upon the offices of
the clerks of the courts in which such proceedings are initiated. Id. at 911. See also Gordon v. U.S. Department of
Justice, 558
F.2d 618 (1st Cir. 1977) (plaintiff enjoined from instituting suit against
any state or federal judge, officer, or employee without permission of court); Green
v. Wyrick, 428 F.Supp. 732 (W.D.Mo.1976).
Oliver, 682 F.2d at 445.
B. Means of Controlling Abusive
Litigation
In light of the multitude, volume and content of Telfair's submissions in this matter and in Telfair-DMC,
Telfair-WJM, Telfair-DMC-Civil and Telfair-SDW, this Court must
select a proper means to control Telfair's litigation
practices. In that endeavor, the Court turns for guidance to the history, goals
and language of the legal provisions and case law addressing the issue.
It has become axiomatic that, when Congress enacted the
Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of
1996, Pub.L. No. 104-134, 110 Stat. 1321, on April
26, 1996, the congressional purpose was, "primarily[,]
to curtail claims brought by prisoners under 42 U.S.C. § 1983 and the Federal
Torts Claims Act ... many of which are routinely dismissed as legally
frivolous." Santana v. United States, 98
F.3d 752, 755 (3d Cir.1996). In other words, the crucial part of the
congressional plan was to curtail meritless prisoner suits through various
restrictions. See id.
One of these restrictions, commonly known as the "three
strikes provision," prohibits prisoners with "three strikes"
from taking advantage of 28 U.S.C. 1915(a)(1), the
federal in forma pauperis statute, which
authorizes a waiver of the fees for filing an action or appeal in federal
court; a prisoner receives a "strike" each time a federal court
dismisses one of the prisoner's actions or appeals as frivolous, as malicious,
or for failure to state a claim. See PLRA 804(d), 110 Stat at 1374-75
(adding 42 U.S.C. § 1915(g)). This provision has four key components in the
sense that: (a) it only applies to prisoners; (b) it applies to civil actions
and appeals; (c) it applies when the prisoner has "three strikes";
and (d) it does not apply if the prisoner "is under imminent danger of
serious physical injury."[40] 28 U.S.C. *582 § 1915(g). All
circuit courts that have addressed the constitutionality of the provision have
upheld the provision against constitutional challenges, and the United States
Supreme Court invariably denied certiorari to challenges to the "three
strikes provision."[41]See, e.g., Higgins v. Carpenter, 258
F.3d 797 (8th Cir.2001); Abdul-Akbar v. McKelvie,
239
F.3d 307 (3d Cir.2001), cert. denied, 533 U.S. 953, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001); Rodriguez v. Cook,
169
F.3d 1176 (9th Cir.1999); White v. Colorado, 157
F.3d 1226 (10th Cir.1998), cert. denied, 526 U.S. 1008, 119 S.Ct. 1150, 143 L.Ed.2d 216 (1999); Rivera v. Allin, 144 F.3d 719
(11h Cir.1998), cert. dismissed, 524 U.S. 978, 119 S.Ct.
27, 141 L.Ed.2d 787 (1998); Wilson v. Yaklich,
148
F.3d 596 (6th Cir.1998); Carson v. Johnson, 112
F.3d 818 (5h Cir.), reh'g denied,
1997 U.S.App. LEXIS 16984 (1997).
Moreover, academic literature observed that, upon its
enactment, the "three strikes provision" was merely a codification of
the already long-recognized inherent court authority to curtail abusive
litigation through imposition of carefully tailored injunctions against such
filings. See, e.g., Randal S. Jeffrey, Restricting Prisoners' Equal
Access to the Federal Courts: The Three Strikes Provision of the Prison
Litigation Reform Act and Substantive Equal Protection, 49 Buffalo L.Rev. 1099, 1141 (2001). Indeed,
a federal court's inherent power to sanction abusive litigants by imposing
filing restrictions is well established, see, e.g., Werner v. Utah, 32
F.3d 1446, 1447-48 (10th Cir.1994) (per curiam);
De Long v. Hennessey, 912
F.2d 1144, 1147-48 (9th Cir.1990); Safir
v. United States Lines, Inc., 792
F.2d 19, 24-25 (2d Cir.1986), cert. denied, 479 U.S. 1099, 107 S.Ct. 1323, 94 L.Ed.2d 175 (1987); see also Chambers v.
NASCO, Inc., 501 U.S. 32,
44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (discussing
the authority for, and scope of, the inherent powers of courts); In re
McDonald, 489
U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989) (per
curiam) (prohibiting the petitioner from filing
any additional extraordinary writs in forma pauperis),
and federal courts have long controlled overly litigious and abusive pro se
litigants by injunctions limiting future filings.[42]
*583 Furthermore, the court's inherent power to control
abusive litigation of individuals whose litigious activities fall outside the
scope of the "three strikes" provision is not limited to civil rights
actions challenging incidents of prison life. See, e.g., Butler v. DOJ, 492
F.3d 440 (D.C.Cir.2007) (affirming the lower court's decision to utilize
its supervisory discretion by denying the prisoner in forma pauperis status in a matter initiated under the Freedom
of Information Act, since the prisoner had five prior appeals dismissed for
failure to prosecute, had another five appeals pending, was a party to five
other suits, and in each of these actions raised largely the same challenges
while filing the same range of documents); see also Hurt v. SSA, 544
F.3d 308, 310 (D.C.Cir.2008) (where the litigant brought numerous cases
alleging various wrongs by government actors and agencies, judges and courts,
and inanimate objects, the court held that "the number, content,
frequency, and disposition" of a litigant's filings show an especially
abusive pattern warranting denial of [in forma pauperis]
status prospectively"); accord Mitchell v. Fed. Bureau of Prisons, 587
F.3d 415 (D.C.Cir. 2009) (where the litigant,
technically, had only two "strikes" but employed litigation practices
that abused his privilege of proceeding in forma pauperis
(by making a multitude of filings that were vague and unspecific), the court
found that he was subject to prospective measures limiting his ability to
proceed in forma pauperis).[43]
C. Tailoring an Appropriate
Preclusion Measure to Control Telfair's Filings
1. Telfair's
Practices Necessitate Adoption of a Control Measure
Here, Telfair's litigious efforts
in this District detected by this Court include:
(a) fifty-one pro se
applications, including motions, petitions and various letters, submitted by
Telfair in Telfair-DMC, *584 that is, while Telfair was represented by a
chain of three defense attorneys, with the totality of Telfair's
pro se submissions reaching the astonishing amount of one thousand
one hundred thirty six pages. See Telfair-DMC, Docket Entries Nos.
6, 8, 9, 10, 11, 13, 17, 18, 20, 21, 22, 27, 30, 33, 37, 38, 39, 40, 41, 46,
48, 49, 51, 57, 58, 59, 60, 61, 62, 71, and United States v. Telfair,
07-0272 (the docket of Telfair's criminal proceedings
preceding the docket reflect in Telfair-DMC), Docket Entries Nos. 26,
42, 48, 51, 52, 53, 54, 55, 56, 58, 59, 60, 65, 66, 67, 68, 71, 74, 75, 76 and
77;
(b) forty-one
pro se complaints, motions, petitions and various applications submitted in
Telfair-WJM, with the totality of Telfair's
submissions reaching an equally astonishing amount of eight hundred eighty
nine pages. See Telfair-WJM, Docket Entries Nos. 1, 3, 4, 9, 10, 11,
12, 13, 18, 20, 25, 31, 32, 43, 37, 38, 39, 43, 44, 45, 46, 47, 48, 49, 50, 51,
52, 53, 54, 55, 56, 58, 59, 61, 62, 63, 64, 65, 66, 67 and 68;
(c) a
thirty-six page pro se complaint in Telfair-DMC-Civil and a
substantively identical forty-two page pro se complaint in Telfair-SDW,
jointly yielding seventy eight pages; and
(d) Form-I and Form-II, as well as
the instant Motion, submitted in this matter by means of mere four docket
entries, and yielding the total of three hundred forty two pages. See
Instant Matter, Docket Entries Nos. 1, 2, 5 and 6.
In other words, systemically raising and re-raising the same
claims and, in addition, filing the same documents many times over, Telfair
deposited on the dockets of this District the striking total of two thousand
two hundred forty five (2,245) pages, hence transforming his litigation
practices into an epitome of abusive litigation.
In light of the foregoing, this Court recognizes that Telfair's inability to control his litigious urges clogs
the dockets in this District and requires judicial intervention. Simply put,
this Court, in exercise of its supervisory discretion, finds it necessary to
enter a limited order of preclusion that helps Telfair to: (a) avoid
repetitious filings, (b) carefully and thoughtfully select his claim; and (c)
reduce these claims to clear and concise statements free from needless
commentary that reduces the value of his submissions. Cf. Llarena v. Kinkos,
05-3410(JBS), Docket Entry No. 2 (a standing order issued by Honorable John W.
Bissell, then Chief Judge of this District, upon taking notice of abusive
litigation practices displayed by a pro se plaintiff in a civil matter
presided by Honorable Jerome B. Simandle; the order
directed the plaintiff to show cause as to why the plaintiff should not be
barred from filing any document without leave of court and, in addition,
mandating the Clerk not to accept any document of any kind from the
plaintiff except for the plaintiff's response to Judge Bissell's order).
2. The Terms of Limited Preclusion
Order Entered Against Telfair
In light of the foregoing, for the purposes of Telfair's currently pending, terminated and future actions
in this District, Telfair will be directed as follows:
(1) With regard to any Telfair's
action that has not been terminated (the list of which, this Court presumes,
includes Telfair-DMC and Telfair-WJM), Telfair shall seek
leave from the judges currently presiding over (or assigned in the future
to) such action to make any pro se submission before actually making
such submission. Each of these applications for leave to file a pro se
submission shall:
a. Be reduced to one-page,
single-sided document;
*585 b. Open with a statement
whereas Telfair shall aver, under penalty of perjury and other sanctions
that might be imposed by the presiding judge, that the particular
submission Telfair seeks leave to file would raise claims or allegations that:
(i) were not
presented to either the presiding judge or to any other judge at any time in
the past, regardless of whether these claims or allegations were already
addressed by the judiciary or are still pending; and, in addition,
(ii) appear bona fide in light of
the guidance provided to Telfair by any judge in this District or by any other
court at any time prior to Telfair's execution of
his application for leave to make a pro se submission; and
c. Summarize the facts that Telfair
intends to assert in his pro se submission, if allowed to file it. Such
summary should be reduced to clear and concise language not exceeding two
hundred words.[44]
No generalities, supplications, lectures on law or akin will be deemed a valid
summary.
In the event the Judge presiding
over the matter with regard to which Telfair seeks leave to make a pro se
submission grants Telfair such leave, Telfair shall make that submission in
strict compliance with the directives and requirements set forth in that
leave (as to the size, format, content, etc.). Telfair's
failure to either seek leave to file any pro se submission or Telfair's failure to comply with the requirements stated to
him by the presiding Judge in the order granting leave will result in the
Clerk's docketing Telfair's submission and
accompanying such docket entry with a notation, reading "PURSUANT TO THE
STANDING LIMITED ORDER OF PRECLUSION, THIS ENTRY IS DEEMED STRICKEN FROM THE
DOCKET FOR PRO SE LITIGANT'S FAILURE TO COMPLY WITH THE REQUIREMENTS SET FORTH
IN THAT ORDER OF PRECLUSION. THE CONTENT OF THIS SUBMISSION WILL NOT BE
CONSIDERED BY THE COURT."
(2) With regard to any Telfair's
action that was terminated (which include the instant action, Telfair-DMC-Civil
and Telfair-SDW and all actions that become conclusively closed in the
future), Telfair shall not make any filing except for filing of a due notice
of appeal (that is, if Telfair actually desires to file an appeal with the
United States Court of Appeals for the Third Circuit). In the event Telfair
makes any filing other than his notice of appeal in any matter that was or has
becomes terminated, the Clerk will docket Telfair's
submission, accompanying such docket entry with a notation, reading
"PURSUANT TO THE STANDING LIMITED ORDER OF PRECLUSION, THIS ENTRY IS
DEEMED STRICKEN FROM THE DOCKET FOR PRO SE LITIGANT'S FAILURE TO COMPLY WITH
THE REQUIREMENTS SET FORTH IN THAT ORDER OF PRECLUSION. THE CONTENT OF THIS
SUBMISSION WILL NOT BE CONSIDERED BY THE COURT."
(3) With regard to any new matter that Telfair wishes to
initiate in this District while acting pro se and proceeding in forma
pauperis, Telfair shall seek leave from
the Clerk to initiate such matter. Such applications for leave to initiate *586
each new pro se action in forma pauperis
shall:
a. Be reduced to one-page,
single-sided document;
b. Open with a statement whereas
Telfair shall aver, under penalty of perjury and other sanctions that might
be imposed by the Court, that the pleading Telfair seeks leave to file
would raise claims or allegations that:
(i) were not
raised in this District or in any other court at any time in the past, regardless
of whether these claims or allegations were already addressed or are still
pending; and, in addition,
(ii) appear
bona fide in light of the guidance that was provided to Telfair by any judge
in this District or by any other court at any time prior to Telfair's execution of his application for leave to file a
new pleading; and
c. Summarize the nature and facts of
the allegations that Telfair intends to raise in his pro se pleading, if
allowed to file it. Such summary should be reduced to clear and concise
language not exceeding two hundred words.[45] No
generalities, supplications, lectures on law or akin will be deemed a valid
summary.
In the event the Clerk grants
Telfair such leave, Telfair shall file a bona fide clear and concise
pleading by either utilizing one of this Court's pre-printed forms (without
adding any pages) or by preparing his own submission which is: (a)
substantively identical, in its format, to the Court's pre-printed form; and
(b) not exceeding fifteen pages, single sided, double-spaced, utilizing a
12-point common letter font[46]and having margins no less
than one inch on each side. Telfair's failure to
either seek leave to file any new pro se pleading in forma pauperis or Telfair's failure
to comply with the aforesaid format requirements will result in the Clerk's
docketing of Telfair's pleading, accompanying such
docket entry with a notation, reading "PURSUANT TO THE STANDING LIMITED
ORDER OF PRECLUSION, THIS ENTRY IS DEEMED STRICKEN FROM THE DOCKET FOR PRO SE
LITIGANT'S FAILURE TO COMPLY WITH THE REQUIREMENTS SET FORTH IN THAT ORDER OF
PRECLUSION. THE CONTENT OF THIS SUBMISSION WILL NOT BE
CONSIDERED BY THE COURT" and administratively terminating the matter.
(4) Telfair's emergent future
submissions are expressly exempt from the requirement set forth in
Paragraph (3). This exemption, however, is limited to civil rights complaints
in which Telfair asserts bona fide claims and details facts clearly
evincing that Telfair is experiencing imminent and ongoing danger to his life
(or imminent, ongoing and serious danger to his health).[47] In
the *587 event Telfair is experiencing such danger to his life or health, he
may submit his pro se pleadings and his duly executed application to
proceed in forma pauperis without seeking the
Clerk's leave to make such submission, provided that Telfair:
(a) Accompanies such submission by a
statement whereas Telfair shall aver, under penalty of perjury and other
sanctions that might be imposed by the Court, that the pleading Telfair
seeks to file raise claims or allegations that were not raised in this
District or in any other court at any time in the past, regardless of whether
these claims or allegations were already addressed or are still pending; and,
(b) Reduces his pleading to a
document not exceeding fifteen pages, single sided, double-spaced, utilizing
a 12-point common letter font[48]and having margins no less
than one inch on each side.
(5) Telfair's submission of a
Section 2255 motion to Judge Cavanaugh is similarly exempt from the requirement
set forth in Paragraph (3).[49] This exemption, however, is limited
to a submission that Telfair would: (a) make in good faith and, in
addition, not prematurely; and (b) execute either on the Court's
pre-printed Section 2255 form (without adding any pages) or reduce his
challenges to a document which is not only substantively similar in its content
and format to this Court's pre-printed Section 2255 form[50] but
also does not exceed fifteen pages, single sided, double-spaced, utilizing a
12-point common letter font[51]and having margins no less
than one inch on each side.
VI. CONCLUSION
For the foregoing reasons, Telfair's
Motion for reconsideration will be granted in form, however, the Court's prior
disposition of Telfair's claims will not change.
Petitioners' original and amended submissions filed in this
matter will remain dismissed. Specifically, Telfair's
habeas challenges will be dismissed as a premature Section 2255 application;
his civil rights challenges will be dismissed as duplicative of those
dismissed, stayed or pending in Telfair-WJM; and challenges asserting
the wrongs allegedly suffered by Gatling will be dismissed for lack of
standing.
No disciplinary investigation of attorney professional
conduct will be initiated in this District in connection with this matter or in
connection with Telfair-DMC or Gatling. No leave to file a bona
fide disciplinary grievance will be granted.
A limited order of preclusion will be entered against
Telfair with regard to the instant matter and all Telfair's
currently ongoing, already terminated and future actions in this District.
*588 An appropriate Order accompanies this Opinion.
NOTES
[1] The United States Court of Appeals for the Third Circuit
guided that a litigant's motion for reconsideration should be deemed
"granted" when the court (the decision of which the litigant is
seeking a reconsideration of) addresses the merits rather than the mere
procedural propriety or lack thereof of that motion. See Pena-Ruiz v. Solorzano, 281 Fed. Appx. 110,
111, n. 1 (3d Cir.2008). However, the very fact of the court's review
does not prevent the court performing such reconsideration analysis (of the
original application, as supplanted by the points raised in the motion for
reconsideration) from reaching a disposition identical either in its rationale
or in its outcome, or in both regards to the court's decision previously
reached upon examination of the original application. See id.
[2] The original submission made in this matter asserted
claims on behalf of both Telfair, also known as Hassan Gatling, and Catrina R. Gatling ("Gatling"), see generally,
Docket Entry No. 1, but that submission designated Telfair as the sole
applicant and bore solely Telfair's signature. See
id. at 1 and 19; see also Docket Entry No.
4, at 1. Moreover, Telfair's later submissions,
including all submissions made in connection with this Motion, suggest that
Gatling was an unwilling participant (and, perhaps even unaware of her
"participation" in this matter). Therefore, while solely for the ease
of discussion the
Court qualifies Gatling as the second Petitioner in this matter, the Court's
determinations are made only as to the allegations raised by Telfair and as to
the litigation practices employed by Telfair, not Gatling.
[3] Telfair's proceedings presided
by Judge Martini are detailed infra.
[4] The entirety of Telfair's
criminal proceedings is reflected in three distinct docket indices, namely:
06-3133, 07-0272 and 07-0757.
[5] As the criminal complaint filed in Telfair-DMC
explains, Telfair was identified as the person orchestrating a drug trafficking
scheme by the residents of the locale where police were dispatched when gunfire
was reported. See Telfair-DMC, Docket Entry No. 1. Upon that
identification, an arrest warrant was executed as to Telfair, see id.,
and Telfair was arrested pursuant to that warrant, the existence of which
provided probable cause for Telfair's arrest.
[6] That action against Bergrin
appears to be a distinct and different proceeding from the legal malpractice
action Telfair initiated against Pedicini. This Court
has no information as to whether or not Telfair initiated analogous action
against his other defense counsel, i.e., Kimball.
[7] These submissions were not Telfair's
last. See Telfair-WJM, Docket Entry No. 67 (a forty-four page letter
reiterating his "joinder" assertions), and Telfair-WJM,
Docket Entry No. 68 (a seventy-five page submission asserting the same, with
newly developed emphasis on the Fifth Amendment).
[8] The discovery proceedings led to prosecutorial filing of
another charge (corresponding to the information asserted in Gatling's criminal
complaint), i.e., that Gatling made false statements to the DEA
officials during her initial and second interviews. See Gatling, Docket
Entry No. 33.
[9] The plea agreement indicates the prosecutor's intent to
recommend, upon Gatling's compliance with her part of the agreement, "a
downward adjustment of 2 levels" of the penal penalty which is applicable,
under the United States Sentencing Guidelines, to the offense with regard to
which Gatling elected to plea guilty. See Gatling,
Docket Entry No. 37, at 7.
[10] Telfair's use of the sentence
"Mark the Envelope `Confidential: Professional Misconduct Complaint' or
`Confidential: Judicial Disability Complaint'" suggests that he might have
borrowed some language from pre-printed/online forms disseminated by federal
Courts of Appeals. See, e.g., http://www.cadc.
uscourts.gov/internet/home.nsf/Content/VL% 20-% 20Forms% 20-% 20Judicial%
20Misconduct% 20Complaint% 20Form/$FILE/Judicial% 20Misconduct% 20Complaint.pdf
(replicating the form disseminated by the United States Court of Appeals for
the D.C. Circuit, which opens with the line "Mark envelope `JUDICIAL
MISCONDUCT COMPLAINT' or `JUDICIAL DISABILITY COMPLAINT.' Do
not put the name of the judge or magistrate on the envelope")
(capitalization in original).
[11] However, "Rule 46" addressing
attorney-related issues is a Federal Rule of Appellate Procedure, which
is: (i) inapplicable to internal procedural
operations of a district court; and (ii) does not contain any language even
remotely resembling that employed in the Form-I. Compare Fed. R.App. P. 46,
http:// www.uscourts.gov/uscourts/RulesAndPolicies/ rules/AP2009.pdf., at 44-45
(setting forth Appellate Procedure Rule 46 in its entirety). Moreover,
while Rule 46 relates, at least, to the issues of attorney discipline, the
rationale of Telfair's reference to "Rule
6" escapes this Court since no "Rule 6" in either the Federal
Rules of Appellate Procedure or in this District's Local Rules relate, in any
way or fashion, to the matters of attorney ethics. This District's extensive
regulations (discussed infra) pertaining to the issues of attorney discipline
are set forth in Local Rule 104.1, which is read in conjunction with its
companion Local Rule 103.1. See http://www.njd. uscourts.gov/rules/completeRules2010.pdf,
at 79-89.
[12] The commentary quoted by Telfair was eliminated when
the Code of Judicial Conduct of the American Bar Association, as amended by the
New Jersey Supreme Court, replaced the Canons of Judicial Ethics of the
American Bar Association. See http://www.judiciary.
state.nj.us/rules/appendices/app1_jud.htm.
[13] This Court is not familiar with the concept of
"associated aggrieved," and the Court's research of that term in
primary and secondary sources yielded no result.
[14] The Court notes, in passing, that the submissions made
in Gatling's criminal prosecution and the statements made by Telfair in Telfair-WJM
indicate that Gatling has one son.
[15] It seems Telfair refers to such motions as his
application to Judge Cavanaugh seeking to call the person who administered Telfair's polygraph test as Telfair's
character witness.
[16] The Court notes with concern the unexplained means by
which Telfair obtained a copy of Gatling's proposed plea agreement.
[17] Indeed, Telfair recited law unambiguously indicating
his intent to file a Bivens complaint. See
Instant Matter, Docket Entry No. 5, at 9.
[18] Telfair's Motion sets forth
an analogous request for relief, reading:
1. "A" declaratory, injunctive, and punitive
decree.
2. A declaratory judgment, pursuant to 28 USCA § 2201 that
the action(s) of the respondent(s) violated the Constitutional & Procedural
right(s) of the Petitioner(s).
3. An Order enjoining, or the postponement of the underlying
federal prosecution of Gatling and Telfair pending review pursuant to 5 USCA §
705 Relief Pending Review and/or 28 USCA § 2202.
4. Such other relief as this court deems just, proper, and
equitable.
5. An order ENJOINING "any" Harassment(s) of
Gatling, Telfair, and witnesses from "any" Official(s) acting on an
individual/Official Capacity.
6. Rule 65. Injunctions and Restraining Orders [Caution: For
amendments effective December 1, 2009, see prospective amendment note to this
rule.] (A) specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition;
and (B) the movant's attorney certifies in writing
any efforts made to give notice and the reasons why it should not be required.
Wherefore, Telfair moves this court to grant the relief
herein or, in the alternative, provide reasons for the denial in the form of a
conclusion of law, which will allow Petitioner to file a meaningful
interlocutory appeal.
Instant Matter, Docket Entry No. 6,
at 53 (capitalization, brackets, parenthetical and quotation marks in
original).
[19] Accord 28 C.F.R. 77.5 (expressly stressing that
the disciplinary provisions and rules of ethics do not give rise to private
remedies and "are intended solely for the guidance of attorneys for the
government. They are not intended to, do not, and may not be relied upon to
create a right or benefit, substantive or procedural, enforceable at law by a
party to litigation with the United States, including criminal defendants,
targets or subjects of criminal investigations, witnesses in criminal or civil
cases"); Fleming v. Lappen, 2006 WL 680980,
2006 U.S. Dist. LEXIS 15830 (D.N.J. Mar. 10, 2006) (relying on 28 C.F.R. 77.5
to deny a criminal defendant private remedies); cf. In re Grand Jury
Subpoena, 533 F.Supp.2d 602, 608 (W.D.N.C.2007) ("a federal [ethics]
statute ... should not be construed in any way to alter federal substantive,
procedural, or evidentiary law").
[20] The same applies to Telfair's
false arrest claim, see Telfair-WJM, Docket Entry No. 14; however, that
claim has no relevance to any attorney action and, thus, raises no issue of
attorney ethics.
[21] Telfair's disregard for the
value of a judicial decision is particularly appalling in light of the fact
that with regard to Telfair-WJM a
dismissal was entered by the Court of Appeals and then the Supreme Court of the
United States had to deny Telfair's six virtually
identical applications.
[22] The AOE's latest annual report explains that
"[t]he attorney disciplinary process . . . begins with the filing of a
grievance against an attorney . . . [u]pon receipt of
[which], a determination is made as to whether the facts alleged, if proven
[under the clear and convincing evidence standard], would constitute unethical
conduct. If the facts alleged in the grievance would not constitute unethical conduct. . ., the case will not be docketed." See
http:// www.judiciary.state.nj.us/oae/2009 annualreport.pdf, ¶¶ II(A) and II(B)(1).
[23] Bergrin was relieved from
representing Telfair on or prior to October 10, 2008. See Telfair-DMC,
Docket Entry No. 7. It appears that Kimball stopped representing Telfair on or
shortly after Telfair's January 23, 2010, request to
Judge Cavanaugh for change of Telfair's CJA, since
that development was followed by Telfair's mailing of
another letter to Kimball; that letter was filed on February 11, 2009, and was
largely analogous to the original Letter-Kimbal
except that the degree of Telfair's threats to
Kimball was escalated. See Telfair-DMC, Docket Entry No. 22 (Telfair's second letter, differing from Telfair-Kimball
only in the sense that: (a) prior to the closing line reading, again, "[i]n closing, I hope we have a proper understanding
counselor, I'll see you on or about the week of January 31, 2009!" Telfair
added two sentences reading, "I do not want any motions, briefs, etc.,
submitted to any courts without me having the chance to review and/or my input!
If you are not interested, as your actions have illustrated throughout my legal
process, please, just remove yourself from this case, I'm tired of wasting
time"; and (b) at the top of that letter, Telfair added a heading reading
"Third and FINAL NOTICE") (bolding removed, capitalization in
original).
[24] It appears that Pedicini was
unaware of Telfair's filing of an ethics grievance
with the OAE (or of Telfair's attempt to file a
grievance against Pedicini with the New Jersey
Lawyers' Fund for Client Protection); rather it appears that Pedicini's application to Judge Cavanaugh for relief from
his appointment as Telfair's defense counsel was a
result of Pedicini's learning (perhaps, as a result
of being served with process) about the legal malpractice suit Telfair
instituted against him in the state court. See Instant Matter, Docket
Entry No. 22, at 23 (indicating that Telfair's
complaint to that effect was filed with the Superior Court of New Jersey, Law
Division, on June 9, 2010).
[25] See USA v. Telfair, 07-cr-0272 (DMC) (the matter
that gave rise to Telfair-DMC), Docket Entries Nos. 9, 34 and 37
(reflecting the fact that Assistant United States Attorney ("AUSA")
Joseph N. Minish was assigned to represent the United
States on February 5, 2008, joining AUSA Paul B. Matey
who was assigned to Telfair's prosecution ab initio. Minish
and Matey were joined by AUSA Brian Lee Urbano (Telfair's current
prosecutor in Telfair-DMC) on March 25, 2008.
[26] Rule 1:20-3(f) provides, in pertinent part, that,
"[i]f a grievance alleges facts that, if true,
would constitute unethical conduct and if those facts are substantially similar
to the material allegations of pending civil or criminal litigation, the
grievance shall be docketed and investigated if, in the opinion of [a
designated OAE official], the facts alleged clearly demonstrate provable
ethical violations or if the facts alleged present a substantial threat of
imminent harm to the public. All other grievances involving such related
pending civil and criminal litigation may be declined and not
docketed." N.J. Ct. R. 1:20-3(f) (emphasis supplied). The Rule's resort to
such terms as "involving" and "may be declined" suggests
that, with regard to grievances like those filed by Telfair, i.e.,
grievances indirectly involving the grievant's
ongoing criminal prosecution, the OAE has discretion rather
than an obligation to decline docketing (which, in turn, suggests
a prerequisite screening on merits). However, Granuzzo's
reference to a certain OAE policy might be construed as indicating that the OAE
adopted a blanket prohibition on docketing of all grievances submitted by
criminal defenders against their counsel or against their prosecutors,
regardless of the merits of the claims asserted in such grievances. (If such policy was, in fact, adopted, the jurisdiction to assess
the validity of such blanket construction of the enabling Rule 1:20-3(f)
mandate rests exclusively with the Supreme Court of New Jersey, and this Court
expresses no opinion about that matter).
[27] Such flexible criteria is suggested by the cumulative
effect of the following three considerations: (a) since the language of New
Jersey Court Rule 1:20-3(f) is set forth in discretion-suggesting terms such as
"may be docketed," it is plausible that the AOE policy referred to in
the Granuzzo Letter is also
discretionary; (b) the fact of Granuzzo's forwarding
of Telfair's grievances against Bergrin
and Kimball to Wind for screening on merits, instead of outright notifying
Telfair that under the blanket policy bar Telfair
could not file a grievance against his defense counsel until his appellate
review is concluded or becomes time-barred, similarly suggests that the OAE
policy is discretionary rather than a blanket prohibition; and (c) the Granuzzo Letter does not indicate that the
policy applies, in a blanket fashion, to a certain class of counsel, e.g., that
it applies to the grievances against prosecutors but not those against defense
counsel, or to state counsel but not federal attorneys, etc. See Granuzzo Letter (informing Telfair of generic OAE's
policy and suggesting that her conclusion to the
effect that Telfair's grievances against Minish/Matey would not be
docketed was not a result of Minish
and Matey's status as federal prosecutors, granted Granuzzo's statement reading, "[i]n
the meanwhile, if you believe that your attorney(s) is (are) not properly
representing you, you may communicate with the public defender's office and/or
the criminal assignment judge in the county in which your matter is venued" and, hence, suggesting her impression that Minish and Matey were not AUSAs
but Telfair's public defenders in a criminal
prosecution by the State).
[28] The Court's examination of Telfair's
allegations against AUSAs is conducted with additional consideration of the
prescripts of the Citizens Protection Act, 28 U.S.C. § 530B, and Ethical
Standards and Principles of Federal Prosecution ("PFP") adopted by
the United States Department of Justice ("DOJ") for the purpose of
regulating the conduct of federal prosecutors. See
http://www.justice.gov/ opr/framework.pdf. The DOJ's
Office of Professional Responsibility clarified that the PFP standard imposed
by the DOJ is rooted in many sources, i.e.,
[federal] attorneys are subject[,]
in the performance of their professional duties[,] to obligations and standards
imposed by law, by applicable rules of professional conduct, and by [DOJ]
regulations and policies . . . . There are many sources of such obligations and
standards, including the Constitution (e.g. . . . the Fourth, Fifth and Sixth
Amendments . . .), federal statutes (e.g. Jencks Act . . .), case law (e.g.
court opinions interpreting the Due Process Clause. . .), court orders (e.g. a
District Court's order on a motion in limine),
rules of procedure (e.g. requirements in the Federal Rules of Civil Procedure
and a District Court's rules . . .), standards of conduct imposed by an
attorney's licensing authority or by the jurisdiction in which the attorney is
litigating (e.g. state rules of professional conduct . . .), regulations issued
by the Department and codified in the Code of Federal Regulations (e.g. the
regulation concerning subpoenas to members of the news media), regulations
codified in the Code of Federal Regulations . . . (e.g. the prohibition on the
use of an employee's public office for private gain), and Department policies
contained in the United States Attorney's Manual (e.g. the requirements imposed
on prosecutors by the [PFP]).
Id.; see also
28 C.F.R. 77.3 ("In all criminal investigations and prosecutions, . . .
attorneys for the government shall conform their conduct. . . to the state
rules and laws, and federal local court rules, governing attorneys in each
State where such attorney engages in that attorney's duties, to the same extent
and. . . manner as other attorneys in that
State").
[29] Moreover, even if this Court were to construe Telfair's allegations as an
assertion of prosecutorial vindictiveness, that assertion would also be
unsupported by facts. The government is deemed engaged in prosecutorial
vindictiveness if it is established that the prosecution engaged in a conduct
that would not have occurred but for the prosecution's desire to punish the
defendant for exercising a specific legal right. See United States v.
Contreras, 108
F.3d 1255, 1262 (10th Cir.), cert. denied, 522 U.S. 839, 118 S.Ct. 116, 139 L.Ed.2d 68 (1997). Here, Telfair's
submissions do not suggest that he exercised any specific legal right prompting
his prosecutors to engage in a conduct that would not have occurred had he not
exercised that right. Accord RPC-ABA D.R. 3.1 and comment 1 ("A
lawyer shall not bring . . . a proceeding, or assert . . . an issue therein,
unless there is a basis in law and fact for doing so that is not
frivolous"; "The advocate has a duty to use legal procedure for the
fullest benefit of the client's cause").
[30] Numerous confusions plague Telfair's
submissions made in this matter and in the underlying proceedings, such as Telfair-DMC
and Telfair-WJM. For instance, Telfair makes systemic allegations
associated with Gatling's (and Telfair's own)
arrests, even though these arrests were performed by DEA agents and police
officers, who were not attorneys admitted to practice in this District and,
hence, not amenable to this Court's disciplinary review.
[31] Plea agreement differs from an agreement not to
prosecute which, on occasion, might be offered in reciprocity for a
particularly valuable cooperation with law enforcement actions. See infra,
this Opinion, at 65-66.
[32] If the Court were to hypothesize that Telfair
envisioned a plea agreement guaranteeing Gatling a sentence other than
imprisonment, such plea offer would be contrary to the dictates of rules of
attorney ethics: a prosecutor cannot guarantee the defendant any particular
sentence (since the sentencing aspect falls entirely within the province
judicial discretion), and in addition prosecutors are obligated to seek a punishment
corresponding to the criminal offense the defendant is charge with. See
PFP 9-27.430 and comments 1 and 3 (providing that "pursuant to a plea
agreement, the defendant should be required to plead to . . . charges [t]hat [are] the most serious [or] readily provable,
[and have] an adequate factual basis. . . . To the extent that the plea
agreement requires the government to take a position with respect to the
sentence to be imposed, there should be little danger since the court will not
be bound by the government's position").
[33] Since Gatling was, in fact, duly charged with harboring
a felon and obstruction of justice (for providing Telfair abode while knowing
there was an outstanding arrest warrant against Telfair, and for making
untruthful statements to the DEA agents during her first and second interview) and
applied for Judge Cavanaugh's permission to plea
guilty to the harboring a felon charge, there appears
to be no dispute that there was factual basis for Gatling's prosecution.
[34] Although no statement made in Telfair's
voluminous submissions suggests Telfair's allegations
that his attorneys were operating while under conflict of interest, this Court solely
out of abundance of caution finds it proper to address that issue, at
least in passing. Here, the record in Telfair-DMC unambiguously
indicates that once Telfair was requesting Judge Cavanaugh to
change his CJA, or once his defense counsel were learning about Telfair's filings of legal malpractice suits against them,
or were in receipt of Telfair's letters directing
them to "just remove yourself from this case," Telfair's
defense attorneys ceased representing him. See, e.g., See
Telfair-DMC, Docket Entry No. 72. Therefore, the only issue worthy
of mentioning is the one associated with these attorney's
representation of Telfair during the periods when Telfair was threatening them
with future "firing." See, e.g., Letter-Kimball
(informing Kimball, inter alia, "that [Telfair does not] plan to
quit fighting, even if that means firing [Kimball]"). However, an
attorney's continuous representation of the client who threatens the attorney
with the danger of future termination of appointment (or with the danger of
having a disciplinary grievance filed against that attorney) does not introduce
an actual conflict of interest into the attorney's conduct. See, e.g.,
United States v. Rodriguez, 612 F.3d
1049, 1054-55 (8th Cir.2010) (finding no conflict of interest on the part
of defense attorney whose client threatened him with filing a disciplinary
grievance, since "appointed counsel could not have `gleaned any advantage
for himself in disciplinary proceedings before the state bar by failing to
employ his best exertions on the [defendant's] behalf at trial'") (quoting
United States v. Burns, 990
F.2d 1426, 1438 (4th Cir.1993), and citing Winfield v. Roper, 460
F.3d 1026, 1040 (8th Cir.2006), Carter v. Armontrout,
929
F.2d 1294, 1299-1300 (8th Cir.1991), and Smith v. Lockhart, 923
F.2d 1314, 1321 n. 11 (8th Cir.1991), in support of the conclusion that
"any holding implying that defendants can manufacture conflicts of
interest by initiating lawsuits against their attorneys" is laden with the
danger of overreaching, and a true conflict arises only if the pending suit in
fact puts the defendant against his attorney).
[35] Latin maxim "falsus
in uno, falsus in omnibus"
is neither a provision adopted by means of any United States statute,
regulation, etc., nor a legal canon of any kind. Literally translated into
English as "false in one thing, false in everything," the maxim: (a)
prompts logical caution as to the entirety of the position taken by the speaker
who, as part of his/her position, misrepresents a certain fact; and, as such,
(b) has been adopted into the panoply of policies of American jurisprudence
related to the propriety of findings made by the trier
of fact. See Kanawha & M.R. Co. v. Kerse, 239
U.S. 576, 581, 36 S.Ct. 174, 60
L.Ed. 448 (1916); Telephone
Cases, 126
U.S. 1, 8 S.Ct. 778, 31 L.Ed.
863 (1888) ("[The falsus in uno, falsus in omnibus] rule
does not necessarily mean that the man who falsifies once is a liar; but it
means that justice will not rest on testimony a substantial part of which is
proved to be false"); Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820 (N.J. (Ct.E. & App.) 1941) (explaining that the maxim is not a
rule of law but a guidance that if testimony of a witness on a material issue
is willfully false and given with an intention to deceive, the jurors may
disregard the entirety of that witness' testimony). Since Telfair was demanding
from his counsel to make applications based on this Latin maxim prior to Telfair's trier of fact even
having a chance to assess any witness testimony, such applications would be
facially nonsensical. Telfair's reference to the
concept of mens rea
fares no better. This Latin term, literally translated into English as
"guilty mind," is incorporated into American penal jurisprudence as
"a general presumption that the specified [state of mind must be
established beyond reasonable doubt to] appl[y] to
all the elements of an offense" when the prosecutor makes his/her case to
the trier of fact, i.e., the jurors (unless
the defendant elects in favor of a bench trial, which was not the case with
Telfair). See Flores-Figueroa v. United States, ___ U.S. ___, 129 S.Ct. 1886, 1895, 173 L.Ed.2d 853 (2009) (Alito, J.,
concurring). Since any argument by Telfair's defense
counsel aiming to obtain Judge Cavanaugh's finding that Telfair operated
without the requisite mens rea would, effectively, be an attempt to strip Telfair
from his right to a jury trial, it is hardly surprising that Telfair's counsel did not make such applications flying in
the face of the Sixth Amendment. Analogously, Telfair's
interest in Latin terminology reflected in his demand to his counsel to make
"stare decisis" applications is
equally nonsensical. Deriving its name from Latin maxim "stare decisis et non quieta movere" (meaning, in English, "to stand by
things decided, and not to disturb settled points"), the doctrine of stare
decisis is a principle that a controlling
precedent by a superior court is binding upon the lower courts, see, e.g., Briley v. City of Trenton, 164 F.R.D. 26, 29
(D.N.J.1995), rather than a particular right of a federal criminal defendant;
the principle is an indelible part of American jurisprudence, and it is
employed equally by state and federal judiciary with regard to all litigants,
be they civil or criminal, defendants and plaintiffs alike. Therefore, an
application by Telfair's defense counsel reminding
Judge Cavanaugh that he was bound to render his decisions in accordance with
the principle of stare decisis would be equal
to reminding Judge Cavanaugh of one of the basic axioms of American
jurisprudence, and wholly unnecessary.
[36] The term "protection order" means any
injunction issued for the purpose of preventing future violent or threatening
acts. See, e.g., Szalai v.
Holder, 572
F.3d 975, 979 (9th Cir.2009). Since such orders are issued to
prevent violence, harassment, stalking, etc. by private citizens, see id.;
see also Nicole M. Quester, Refusing to Remove
an Obstacle to the Remedy: The Supreme Court's Decision in Town of Castle Rock
v. Gonzales Continues to Deny Domestic Violence Victims Meaningful Recourse,
40 Akron L.Rev. 391, 399 and nn. 69-74 (2007) (tracing the history ad aim of protection orders), the device has nothing in
common with halting or ceasing one's criminal prosecution by the government,
i.e., the goal Telfair hoped to attain.
[37] The rationale of Telfair's
demands to his counsel to make applications based on the "silver platter
doctrine" escapes this Court. Half-a-century ago, the Supreme Court
adopted the term by ruling, in Elkins v. United States, 364 U.S.
206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), that
evidence obtained by state officers in violation of the Fourth Amendment could
not be introduced against a defendant in a federal criminal trial. That
position was a broadening of the holding reached in Weeks v. United States,
232 U.S.
383, 34 S.Ct. 341, 58 L.Ed.
652 (1914), where the Court held that evidence obtained by federal officials in
violation of the Fourth Amendment cannot be used against a defendant in a
federal criminal proceeding; that rule eventually became part of Fourth
Amendment concepts and policies jointly comprising the exclusionary rule which,
in turn, gives base to suppression motions. See, e.g., United States v. Crandell, 554 F.3d
79, 83 (3d Cir.2009) (quoting Terry v. Ohio, 392 U.S. 1,
12, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for
clarification that the term "exclusionary rule" implicates, "[i]n the evidentiary context of the defendant's criminal
trial, [a determination as to] the admissibility against a defendant of the
evidence uncovered by the search and seizure"); United States v. Berry,
369
F.2d 386, 387 (3d Cir.1966) ("[t]he ground for the motion to suppress
[might be] the well established rule that evidence obtained as the result of an
illegal arrest or search is inadmissible in a prosecution for a criminal
offense"). However, Telfair's arrest was
conducted on the basis of a valid arrest warrant, and his search was incidental
to that arrest; plus, the search of the premises of Telfair's
associates in drug trafficking was conducted pursuant to a 911 call informing
the police about gunfire and the ensuing police investigation of these gun
shots. Hence, this Court is unclear as to on what grounds could Telfair's counsel make a non-frivolous suppression motion.
[38] The term "abuse of process" implies a
litigant's improper use or perversion of legal process through actions
undertaken for the purpose other than that intended by the law to effect, see,
e.g., Bd. of Educ. v. Farmingdale Classroom Teachers Ass'n,
Local 1889, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (N.Y.1975); Wesko v. G.E.M., Inc., 272 Md. 192, 321 A.2d 529
(1974); see also David K. Godschalk, Protected
Petitioning or Unlawful Retaliation?, 27 Pepp. L.Rev. 477 (2000) (discussing the Statute of Marlbridge, which incorporated the first provision in
English law permitting penalties for an action instituted in abuse of process);
the concept of "abuse of process" differs from that of
"malicious prosecution" in resting upon an improper use of regularly
issued process, rather than upon a wrongful issuance of process. See, e.g.,
John W. Wade, On Frivolous Litigation: A Study of
Tort Liability and Procedural Sanctions, 14 Hofstra
L.Rev. 433, 451 (1986); see also Rudnicki v. McCormack, 210 F.Supp.
905, 910 (D.R.I. 1962) (tracing the history of bar on abuse of process from the
issuance of Earl of Bath v. Sherwin, 4 Brown's Parl. Cas.
373 (1709), to "more recent times, [when] this power was affirmed, and
perhaps extended, in England by the Vexatious Actions Act, 59 & 60 Vict. c. 51, which authorized the High Court to enjoin the
bringing of further actions by `any person (who) has habitually and
persistently instituted vexatious legal proceedings without any reasonable
ground'") (quotations and citation omitted).
[39] A "recreational litigant" is the "one
who engages in litigation as sport and files numerous [submissions] with little
regard for substantive law or court rules." Jones v. Warden of the Stateville Correctional Ctr., 918 F.Supp. 1142, 1153 (N.D.Ill.1995) (noting that,
"[w]hen confronted with [a] recreational
plaintiff, courts, to protect themselves and other litigants, have enjoined the
filing . . . without leave of court" and citing In re Winslow, 17
F.3d 314 (10th Cir. 1994); In re Burnley, 988
F.2d 1 (4th Cir. 1992); and Mayfield v. Collins, 918 F.2d 560
(5th Cir. 1990)).
[40] The exact language of the "three strikes
provision" reads as follows:
In no event shall a prisoner bring a civil action or appeal
a judgment in a civil action or proceeding under this section if the prisoner
has, on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.
28 U.S.C. § 1915(g). Notably, to qualify for the imminent danger exception, the
plaintiff must detail the nature of harm and be in imminent threat of suffering
serious physical injury at the time he submits his pleadings for filing. See
White v. Colorado, 157
F.3d 1226, 1232 (10th Cir.1998) (plaintiff's use of imminent danger
exception to three strikes provision is precluded because defendant failed to
specify nature of harm); Medberry v.
Butler, 185
F.3d 1189, 1193 (11th Cir.1999) (plaintiff cannot use imminent danger
exception to the "three strikes provision" if danger ceased prior to
his submission of the complaint to his prison officials for mailing to the
court).
[41] In so ruling, the courts utilized, inter alia,
the following reasoning: (a) the interests that the litigants challenging the
provision sought to vindicate through filing the cases were not fundamental, see
Rodriguez, 169 F.3d at 1180; White, 157 F.3d at 1233-34; Rivera,
144 F.3d at 724; Carson, 112 F.3d at 821; (b) an alternative remedy to
the federal courts was available, namely the prisoner could bring a case in
state court, see Abdul-Akbar, 239 F.3d at 318; Wilson, 148 F.3d
at 605; see also Rivera, 144 F.3d at 724 n. 9; (c) the prisoner
challenging the provision lacked actual injury, see White, 157 F.3d at
1234; (d) the ability to pursue civil actions is subject to congressional
limitation, since proceeding in forma pauperis
in civil actions is a privilege, not a right, see Abdul-Akbar, 239 F.3d
at 317; Rodriguez, 169 F.3d at 1180; White, 157 F.3d at 1233; Rivera,
144 F.3d at 723; and (e) the "imminent danger" exception guarantees
that prisoners with claims implicating fundamental interests actually are able
to raise such claims in federal court. See Higgins, 258
F.3d at 800; Abdul-Akbar, 239 F.3d at 319; White, 157 F.3d
at 1234.
[42] In 1989, basing its conclusions on this judicial
practice, the Supreme Court having its fair share of abusive litigants entered
its first order prospectively denying pauper status to an indigent petitioner. See
In re McDonald, 489 U.S. 180,
180, 109 S.Ct. 993, 103 L.Ed.2d 158
(1989). The Court subsequently has entered similar orders against other
abusers. See, e.g., Attwood v. Singletary, 516
U.S. 297, 116 S.Ct. 769, 769, 133 L.Ed.2d 721
(1996) (per curiam) (ten petitions in one
year); In re Sassower, 510 U.S. 4,
4, 114 S.Ct. 2, 126 L.Ed.2d 6 (1993) (per curiam) (eleven petitions in three years, plus ten more
during 1993); Day v. Day, 510 U.S. 1, 2,
114 S.Ct. 4, 126 L.Ed.2d 1 (1993) (per curiam) (twenty-seven petitions in nine years). In
1991, the Court amended Rule 39.8 of the Rules of the Supreme Court of the
United States to read as follows: "If satisfied that a petition for a writ
of certiorari, jurisdictional statement, or petition for an extraordinary writ,
as the case may be, is frivolous or malicious, the Court may deny a motion for
leave to proceed in forma pauperis." In re Amendment to Rule 39, 500
U.S. 13, 14, 111 S.Ct. 1572, 114 L.Ed.2d 15
(1991).
[43] These decisions were rendered with regard to the
matters instituted by individuals who proceeded pro
se and, in addition, sought in forma pauperis
status: as Telfair did in Telfair-WJM, Telfair-DMC-Civil and Telfair-SDW.
However, the power of the judiciary to limit abusive filings is not limited to
such matters only: it applies to any matter where an abusive litigant is
unable to control his/her client's litigation urges. The Court of Appeals for
the Third Circuit expressly guided that, in such cases:
"a pattern of groundless and
vexatious litigation will justify an order prohibiting further filings without
permission of the court." Chipps v. U.S. District Court for the Middle District of Pa., 882 F.2d
72, 73 (3d Cir. 1989). In addition, a District Court has the
authority to issue limitations on pro se filings submitted while the party is
represented by counsel. See United States v. Vampire Nation, 451
F.3d 189, 206 n. 17 (3d Cir. 2006) (citing United States v. Essig, 10 F.3d 968,
973 (3d Cir. 1993)). Here, the District Court [repeatedly] enjoined [the
represented litigant's] pro se filings, but to no avail. To the extent
that the District Court must take additional steps to effectuate its injunction, [and] we encourage it to do so.
United States v. D'Amario, 328 Fed.Appx.
763, 764 (3d Cir.2009) (emphasis supplied).
[44] The phrase "two hundred words" refers to all
words, regardless of their length or their grammatical qualification, i.e.,
it includes all articles, prepositions, nouns, verbs, adjectives, etc.
[45] See note 44, supra, this Opinion.
[46] Noting Telfair's tendency to
change fonts of his submissions, the Court stresses that Telfair's
utilization of overly-narrow fonts will not be tolerated. Thus, Telfair must
either utilize common fonts, such as Arial, Courier New, Times New Roman, etc.,
or simply hand-print.
[47] To that extent, the Court stresses that speculative
claims about potential danger (e.g., speculations about potential animus on the
part of other inmates or prison officials, etc.,) would not suffice, just as
assertions based on circumstances not presenting a serious danger to Telfair's health (e.g., assertions based on dietary
restrictions, emotional distress, head cold, unsanitary conditions, etc.) would
not suffice. Conversely, claims asserting for instance facts clearly evincing complete
denial of medical care for such conditions as already-diagnosed cancer,
already-diagnosed hepatitis C, or analogously grave health threats, would
qualify as emergent.
[48] See note 46, supra, this Opinion.
[49] Since a Section 2255 petition is effectively a motion
and, as such, need not be accompanied by the litigant's in forma pauperis application, Telfair's
§ 2255 motion cannot, technically, qualify as a pleading within the meaning of
the definition provided in Paragraph (3). However, recognizing that a
litigant's filing of his/her Section 2255 motion results in initiation of a new
legal action, this Court out of abundance of caution and recognizing Telfair's need for guidance as to the proper mode of
litigation practices finds it warranted to address the issue.
[50] See Toolasprashad v. Grondolsky, 570 F.Supp.2d 610, 653 (D.N.J.2008)
("[U]nder Habeas Rule 2(e), [the petitioner]
should either complete a pre-printed form or submit a similar application,
since a § 2241 petition cannot be a voluminous compilation of
stream-of-consciousness-like narratives").
[51] See note 46, supra, this Opinion.