Jimenez Perez v. United States

Opinion

UNITED STATES DISTRICT COURT Bg SOUTHERN DISTRICT OF NEW YORK 5 ee

EDUARDO H. JIMENEZ PEREZ, BOS Petitioner/Pro-se, Civil Action Ms 2 No.: 1:25-ev-03400-JHR-JW UNITED STATES OF AMERICA Respondent.

MOTION TO ENFORCE SUBPOENA COMPLIANCE AND TO PRESERVE PROCEDURAL FAIRNESS

TO THE HONORABLE JENNIFER WILLIS, U.S. MAGISTRATE JUDGE: Petitioner Eduardo H. Jimenez Perez respectfully submits this motion to enforce compliance with the subpoena duces tecum, formally titled "Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action," which was authorized by this Court on May 15, 2025, and duly served on May 16, 2025, upon former defense counsel Frederick L. Sosinsky, Esq., in connection with Petitioner’s pending Petition for Writ of Error Coram Nobis.

This motion is brought pursuant to Fed. R. Civ. P. 45(d)(2)(B)(i), Fed. R. Civ. P. 37(a), and the Court’s inherent equitable authority. On June 5, 2025, Petitioner filed a Motion to Compel Compliance with Subpoena Duces Tecum, which was physically submitted to the Clerk of Court and docketed as ECF No. 34. On June 18, 2025, the Honorable District Judge Jennifer H. Page I of 6

Rearden entered an Amended Order of Reference (ECF No. 36), formally referring that motion and related matters to Your Honor for resolution.

As of the date of this filing—June 30, 2025—-more than eleven (11) days have passed since the Court’s referral order, and Mr. Sosinsky has still not responded to the subpoena. He has neither requested an extension nor filed a motion te quash. Petitioner respectfully submits that, in the absence of any judicial enforcement or further directive, this continued delay materially impairs Petitioner’s ability to develop the factual record needed to respond to the Government's memorandum of opposition filed on June 27, 2025.

The Government's memorandum of opposition, filed June 27, 2025, relies heavily on Petitioner's purported "lack of evidence," making Mr. Sosinsky's compliance essential to a fair adjudication. The subpoena specifically requested documents including communications, notes, legal memoranda, plea negotiations, and specific immigration advisories provided by Mr. Sosinsky regarding the immigration consequences of Petitioner’s guilty plea. These materials directly bear upon Petitioner's Sixth Amendment claim and are essential to establishing counsel’s ineffective assistance.

Mr. Sosinsky’s noncompliance now exceeds 40 days from the original deadline of May 20, 2025, without justification, acknowledgment, or any communication. The absence of these critical documents undercuts Petitioner's capacity to respond fully and adequately to the DOJ’s opposition memorandum, thereby affecting the fairness and completeness of the evidentiary record before the Court. Petitioner highlights that more than 40 days have passed since the original compliance deadline, during which attorney Sosinsky has maintained absolute silence, further exacerbating the procedural prejudice. Page 2 of 6

On June 24, 2025, the Government obtained a limited unsealing order to access sealed plea and sentencing materials in support of its opposition. In light of this, Petitioner respectfully requests reciprocal enforcement to ensure that the record is developed fairly and that Petitioner is not prejudiced by the absence of equally material evidence that remains under Mr. Sosinsky's exclusive control.

Petitioner further invokes the principles of judicial efficiency embodied in Fed. R. Civ. P. 1, which directs that the rules “be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Absent timely enforcement, the ongoing noncompliance not only prejudices Petitioner but also delays the orderly resolution of the constitutional issues presented.

In addition, Petitioner invokes the principle of procedural fairness recognized by the Second Circuit in United States v. Amedeo, 71 F.3d 1044, 1048 (2d Cir. 1995), which affirms the necessity of ensuring that judicial proceedings are conducted on a complete and balanced record. The Court’s equitable powers should be exercised to prevent one party’s silence or obstruction from depriving the other of a fair opportunity to be heard.

Petitioner does not seek at this stage to rebut the Government’s opposition or pre-argue the merits of the Petition. Rather, this motion is made strictly to ensure that the Court has access to the full evidentiary record before proceeding to any determination or further briefing.

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WHEREFORE, Petitioner respectfully requests that this Court: 1. Issue an order compelling Mr. Frederick L. Sosinsky, Esq., to fully comply with the subpoena duces tecum immediately; 2. Direct Mr. Sosinsky to produce all requested documents no later than seven (7) days from entry of the Court’s order, or alternatively, require Mr. Sosinsky to appear and show cause why he should not be held in contempt; 3. Consider the imposition of civil contempt sanctions under Fed. R. Civ. P. 43(g), including monetary penalties, to address the ongoing and unjustified noncompliance by Mr. Sosinsky; 4. Issue any further orders necessary to ensure Petitioner's ability to respond adequately to the DOJ’s memorandum (ECF filed June 27, 2025), given that the current lack of compliance severely impairs Petitioner's constitutional right to fully present his case; and 5. Grant such other and further relief as this Court deems just, equitable, and appropriate to preserve the fairness and integrity of these proceedings.

Respectfuily submitted,

Eduardo H. Jimenez Perez Petitioner, Pro Se 301 East 99th Street, Apt. 303 New York, NY 10029 rp_eduardo«photmail.com Dated: June 30, 2025

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CERTIFICATE OF SERVICE I, Eduardo H. Jimenez Perez, hereby certify that on June 30, 2025, I served a truc and correct copy of the foregoing Motion to Enforce Subpoena Compliance and to Preserve Procedural Fairness upon the following parties via U.S. Mail and email:

Rebecca 8. Delfiner, Esq. Assistant United States Attorney U.S. Attorney’s Office — Southern District of New York 26 Federal Plaza, 37th Floor New York, NY 10278 Email: □□□□□□□□□□□□□□□□□□□□□□□□□□□ Clerk of the Court United States District Court - SDNY 500 Pearl Street New York, NY 10007

Eduardo H. Jimenez Perez Petitioner, Pro Se Dated: June 30, 2025

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PROPOSED ORDER Upon consideration of the Motion to Enforce Subpoena Compliance and to Preserve Procedural Fairness filed by Petitioner Eduardo H. Jimenez Perez, it is hereby ORDERED as follows:

ORDERED ihat attorney Frederick L. Sosinsky, Esq., shall comply with the subpoena duces tecum issued on May 15, 2025 and served on May 16, 2025; and it is further

ORDERED that Mr. Sosinsky shall produce all responsive documents within seven (7) days of this Order, or appear before this Court and show cause why he should not be held in contempt under Fed. R. Civ. P. 45(g); and it is further

ORDERED that failure to comply may result in civil contempt sanctions, including monetary penalties and other appropriate relief.

SO ORDERED. ‘Dated: July 7 , 2025 New York, NY

JE pLFER EY . Magistrate Judge

The Clerk of Court is respectfully requested to close Dkt. Nos. 34 and 41. SO ORDERED.

NNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE July 7, 2025

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