VANDERBECK v. UNITED STATE OF AMERICA

Filing 31

MEMORANDUM AND ORDER directing the Clerk of the Court to OPEN this matter so that the Court may consider Petitioner's submission; Petitioner's requests to reopen this matter and for relief under Rule 60(b) are DENIED; and it is further ordered that the Clerk of the Court shall mark this matter as CLOSED. (A copy of this Order was sent to the Petitioner at the address on file via Regular Mail on 8/9/2022). Signed by Chief Judge Freda L. Wolfson on 8/9/2022. (jdg)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ERIK VANDERBECK,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 18-4144 (FLW)
MEMORANDUM & ORDER

Petitioner Erik Vanderbeck (“Petitioner”) is a federal prisoner seeking to reopen his motion
to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C. § 2255 (the “Motion”),
which this Court denied on October 1, 2019. See ECF Nos. 11-12. On May 5, 2020, the Court
also denied Vanderbeck’s motion for reconsideration brought pursuant to Fed. R. Civ. P. 59(e).
See ECF Nos. 18-19. On August 20, 2020, the Third Circuit denied Petitioner’s request for a
certificate of appealability as to his Motion. See ECF No. 20. For the reasons explained in this
Memorandum & Order, the Court likewise denies Vanderbeck’s letter requests to reopen this
matter, which the Court construes as requests for relief under Fed. R. Civ. P. 60(b).
The Court provides the following relevant background. On April 8, 2016, following a jury
trial, Petitioner was convicted of two counts of production of child pornography in violation of 18
U.S.C. § 2251(a); one count of distribution of child pornography in violation of 18 U.S.C. §
2252(a)(2)(A); and one count of possession of child pornography in violation of 18 U.S.C. §
2252(a)(5)(B). United States v. Vanderbeck, Crim. No. 15-165, ECF No. 56. 1 The conduct

1

At trial, this Court dismissed an additional count of production of child pornography. See Crim.
No. 15-165, ECF Nos. 15, 18.

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underlying Petitioner’s conviction involved his use of “online messaging services to communicate
with underage females, asking them to send him sexually explicit photographs and videos of
themselves.” United States v. Vanderbeck, 702 F. App’x 54, 55 (3d Cir. 2017).
All three of Petitioner’s victims testified at trial. In Ground One of his § 2255 Motion,
Petitioner claimed “ineffective assistance” because defense counsel failed to cross-examine one of
those victims, Joanna, the teenage victim who fainted on the witness stand during her direct
testimony and needed to be revived before a short recess was taken. See Crim. No, 15-165, ECF
No. 48, at 135–37. Following that recess, the Government asked a limited number of additional
questions and defense counsel did not conduct any cross-examination.

See id. at 138–45.

Petitioner asserted that Joanna testified that Petitioner threatened to post her pictures online and
that such testimony was uncorroborated. Motion at 11-12. Petitioner also asserted that certain of
Joanna’s testimony was contradicted by her prior statements and that such contradictions should
have been explored on cross-examination. Motion at 12-13.
In denying habeas relief, the Court found that the failure to cross-examine Joanna did not
constitute ineffective assistance of counsel because Petitioner failed to demonstrate he suffered
any prejudice as a result of counsel’s decision. ECF No. 11, Opinion at 8. The Court explained
Petitioner’s failure to show prejudice as follows:
While Petitioner asserted that Joanna’s testimony was the sole
evidence presented to demonstrate that he “employ[ed], use[d],
persuade[d], induce[d], entice[d], or coerce[d]” Joanna to send him
pornographic images of herself, see 18 U.S.C. § 2251(a), there was
other documentary evidence presented at trial on this element of the
offense of production of child pornography. Indeed, email
conversations between Joanna and Petitioner were admitted at trial
which demonstrate that he encouraged her to send him photos. (See
ECF No. 9, Ex. E (not filed on ECF).) Moreover, in Petitioner’s
statement to law enforcement, he stated that Joanna sent him “a
couple of pictures” and that he “might have asked for the topless
one.” (ECF No. 9, Ex. B, at 38–39 (not filed on ECF).) If anything,
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the inconsistencies in Joanna’s testimony go only to her credibility,
which Petitioner’s counsel addressed in his summation. See Crim
No. 15-165, ECF No. 50, at 61–68. Based on this additional
evidence presented at trial, and the fact that counsel addressed the
issue of Joanna’s credibility in his closing, there is no indication that
counsel’s failure to cross-examine Joanna was “so serious as to
deprive the defendant of a fair trial” or that the jury’s verdict is
unreliable. See Strickland, 466 U.S. at 687. Because Plaintiff has
failed to demonstrate that he was prejudiced by counsel’s decision,
relief on this claim is denied.
Id. at 8-9.
In his subsequent motion for reconsideration, Petitioner asserted that his trial counsel
should have asked Joanna about the form of communication Petitioner used to threaten her, i.e.,
email, and further asserted that the failure to ask this question amounts to ineffective assistance of
counsel. Petitioner also attached several exhibits of Joanna’s statements to investigators and her
testimony at trial. See ECF No. 13. In Petitioner’s view, this question, if posed by counsel, would
have exposed Joanna’s “lies” because, according to Petitioner, there were no emails in evidence
that corroborated Joanna’s claim that Petitioner threatened her. See id.; see also ECF Nos. 16-17.
In denying the motion for reconsideration, the Court explained that Petitioner is unable to
show he was prejudiced by counsel’s decision not to cross-examine Joanna since his counsel made
the same point about the lack of corroboration in his closing statements. See ECF Nos. 18-19.
Defense counsel, in closing statements, specifically argued that there was no documentary
evidence corroborating Joanna’s testimony that Petitioner had threatened her. See Crim No. 15165, ECF No. 50, at 61–68. Therefore, defense counsel simply elected a strategy that did not run
the risk of additional testimony from a sympathetic witness, and Petitioner is unable to show he

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was prejudiced by this decision since his counsel made the same point about the lack of
corroboration in his closing statements. 2
Nearly three years after the Court denied Vanderbeck’s § 2255 Motion, Petitioner began
submitting letters to the Court. See ECF Nos. 21-30. In these letters, Vanderbeck seeks to “reopen
this matter to search for evidence[,]” i.e., the email to corroborate Joanna’s testimony that
Vanderbeck threatened her via email to produce the nude images. See, e.g., ECF No. 29 at 1.
Vanderbeck also appears to contend that his conviction must be vacated due to prosecutorial
misconduct in connection with the failure to produce the email. See id. Vanderbeck also claims
that counsel was ineffective for failing to ask the prosecution for the email and for failing to
“expose the fact” that no email exists. ECF No. 21 at 2.
The Court construes Plaintiff’s recent filings as attempts to seek relief from judgment
under Fed. R. Civ. P. 60(b). “Rule 60(b) allows a party to seek relief from final judgment, and
request reopening of his case, under a limited set of circumstances.” Gonzalez v. Crosby, 545
U.S. 524, 528 (2005). Specifically, Rule 60(b) provides, in relevant part, that relief from a
judgment may be granted on the following grounds:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a
new trial under rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;

2

In addition, the Court noted that Petitioner’s claim that Joanna gave uncorroborated testimony
regarding Petitioner’s “threats,” failed because the use of threats is not a required element of Count
2 (the production of child pornography count relating to Joanna). Instead, the jury needed only
find that Petitioner “employed, used, persuaded, induced, enticed, or coerced [Joanna] to engage
in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” See
Jury Instruction No. 16.
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(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
There are time limitations on Rule 60(b) motions. Specifically, “[a] motion under Rule 60(b)
must be made within a reasonable time—and for reasons (1), (2) and (3) no more than a year
after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c); see
Gonzalez, 545 U.S. at 534-35 (observing that there is a “specific 1-year deadline for asserting
three of the most open-ended grounds of relief (excusable neglect, newly discovered evidence,
and fraud)”). A motion filed under Rule 60(b)(6) must demonstrate “extraordinary
circumstances” that would justify “the reopening of a final judgment[,]” id. at 535 (quotation
omitted), and “must be made within a reasonable time.” Fed. R. Civ. P. 60(c).
Here, Vanderbeck’s motion is untimely under Rule 60(b)(1), (2), and (3). Moreover, he
has not provided any extraordinary circumstances that would justify the reopening of this Motion
under Rule 60(b)(6). His argument that his conviction is invalid without the email proving he
threatened Joanna is specious in light of her testimony and the other evidence supporting his
convictions. The Court therefore denies Vanderbeck’s requests to reopen this matter pursuant to
Rule 60(b)(6). 3

3

The Court notes that it has no jurisdiction to consider a second or successive habeas petition. See
United States v. Donahue, 733 F. App’x 600, 602 (3d Cir. 2018) (stating that we have no
jurisdiction to “consider [a] Rule 60 motion ... if it [is] ... an attempt to circumvent the requirements
for filing a new [habeas] motion” (citation omitted)). As explained in Pridgen v. Shannon, 380
F.3d 721, 727 (3d Cir. 2004), a Rule 60 motion may be adjudicated if its “factual predicate ...
attacks the manner in which the earlier habeas judgment was procured and not the underlying
conviction.” By contrast, a “motion presenting new evidence in support of a claim already
litigated” is “in substance a successive habeas petition and should be treated accordingly.”
Gonzalez, 545 U.S. at 531. To the extent Vanderbeck’s request to reopen this matter amounts to
an unauthorized successive motion, it is denied for lack of jurisdiction.
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IT IS THEREFORE, on this 9th day of August 2022,
ORDERED that the Clerk of the Court shall mark this matter as OPEN so that the Court
may consider Petitioner’s submissions, see ECF Nos. 21-30; and it is further
ORDERED that Petitioner’s requests to reopen this matter and for relief under Rule 60(b)
are DENIED for the reasons explained in this Memorandum & Order; and it is further
ORDERED that the Clerk of the Court shall send a copy of this Order to Petitioner at the
address on file and mark this matter as CLOSED.

s/Freda L. Wolfson
FREDA L. WOLFSON
U.S. Chief District Judge

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