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September 24, 2004.

United States of America Plaintiff,
Gregory J. Iovine Defendant.

The opinion of the court was delivered by: DAVID COAR, District Judge


Petitioner Gregory J. Iovine ("Petitioner" or "Iovine") seeks to vacate, set aside, or correct his criminal conviction pursuant to 28 U.S.C. § 1651. Petitioner, who has been released from federal custody, alleges that constitutional violations during his trial rendered his guilty plea invalid. For the reasons set forth in the opinion below, petitioner's motion is DENIED.

I. Factual Background

  On March 13, 1995, Iovine entered a guilty plea to a superseding information charging him with violations of 18 U.S.C. §§ 1951 and 924(c). Full descriptions of the facts of the case against Petitioner and his co-defendant Ienco that led to this plea agreement previously have been reported and we will not repeat them here.*fn1 United States v. Ienco, 182 F.3d 517 (7th Cir. 1999); United States v. Ienco, 92 F.3d 564 (7th Cir. 1996). In summary, Gregory Iovine and his associate, Joseph Ienco, were charged with a litany of offenses arises from an alleged attempted extortion. Prior to trial, Ienco and Iovine filed a joint suppression motion to suppress physical evidence. Iovine also filed a motion to suppress statements he made to the police. The trial judge denied the joint suppression motion. Iovine then agreed to cooperate with the government and entered a guilty plea to a superseding indictment, charging him with violations of 18 U.S.C. §§ 1951 and 924(c). The following day, Petitioner withdrew his motion to suppress his custodial statements.

  After the conclusion of his co-defendant Ienco's jury trial, Iovine was sentenced to 41 months and five years to be served consecutively. Ienco was sentenced to thirty-three years and five months in prison. Ienco appealed his sentence, alleging errors in the pre-trial suppression hearing and at trial. The Seventh Circuit reversed the district court's denial of the motion to suppress and Ienco's conviction under 18 U.S.C. § 924(c). The case was remanded to the trial court with instructions to reinstate his non-924(c) convictions if the motion to suppress again was denied. The 924(c) conviction was to be retried pursuant to the decision in Bailey v. United States, 516 U.S. 137 (1995).

  The case was then reassigned to this Court, and a new suppression hearing was held. This Court granted Ienco's motion to suppress physical evidence and Petitioner's testimony as fruits of the poisonous tree. The government appealed, and the Seventh Circuit affirmed this Court's ruling. Without the evidence suppressed by the ruling, the government determined that it did not have sufficient evidence to convict Ienco. For that reason, on September 9, 1999, the government moved to dismiss the pending charges against Ienco; the Court granted this motion. Ienco was released from custody that same day. The government also had a Rule 35 motion pending before this Court at that time, in which it sought to reduce Petitioner's sentence based on additional cooperation. On September 15, 1999, following the dismissal of charges against Ienco, the government moved to reduce Petitioner's sentence to time served. That motion was granted, and Petitioner was released from custody on September 15, 1999.

  II. Analysis

  This Court has proper jurisdiction over Petitioner's motion. Congress has empowered the federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651. Accordingly, a "federal district court has the power to vacate one of its judgments of conviction after the sentence for that conviction has expired when a constitutional right is at stake." United States v. Correa-de Jesus, 708 F.2d 1283, 1285 (7th Cir. 1983) (citing United States v. Morgan, 346 U.S. 502 (1954)).

  All of Petitioner's allegations are based on the premise that the government used perjured evidence to obtain his plea agreement. A writ of error coram nobis permits a court to correct fundamental errors and vacate a criminal conviction even after the defendant has been released from custody. 28 U.S.C. § 1651(a); Morgan, 346 U.S. 502, 512-13 (1954); Howard v. United States, 962 F.2d 651, 653 (7th Cir. 1992). The writ is an extraordinary remedy, however, and the need for finality of judgments means that the writ "should only be allowed under circumstances compelling such action to achieve justice." Id.

  1. Required Elements of Coram Nobis Showing

  Coram nobis is not a substitute for section 2255 relief. Here, however, Iovine has served the full term of his sentence and is no longer in custody. Therefore, a request for coram nobis relief is appropriate. A writ of coram nobis, however, is an "extraordinary remedy," Howard v. United States, 962 F.2d 651, 653 (7th Cir. 1992), and limited to correcting errors "`of the most fundamental character.'" United States v. Bush, 888 F.2d 1145, 1147 (7th Cir. 1989) (quoting Morgan, 346 U.S. at 512).

  Coram nobis is not an open-ended form of relief. In its limited discussions of the circumstances when coram nobis relief is appropriate, the United States Supreme Court has emphasized the need for finality in litigation and suggested that coram nobis should address only errors "`of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid.'" Morgan, 346 U.S. at 512 (citing United States v. Mayer, 235 U.S. 55, 69 (1914)). The limited scope of the writ ensures that coram nobis will not be used as a substitute for appropriate appeal or as a means to avoid the one-year statute of limitations on section 2255 petitions. Mercado v. United States, 104 F. Supp. 2d 1059, 1063 (E.D. Wisc. 2000); United States v. Darnell, 716 F.2d 479, 481 n. 5 (1983). As the Seventh Circuit has noted, "frequent use of this writ would discard the benefits of finality," therefore, "it has been reserved for compelling events," such as "defects that sap the proceeding of any validity." United States v. Keane, 852 F.2d 199, 202 (7th Cir. 1988), cert. denied, 490 U.S. 1084 (1989) (citations omitted).

  To be successful on a motion for coram nobis relief, petitioner must show that (1) the claim could not have been raised on direct appeal; (2) the conviction produces lingering civil disabilities; and (3) the alleged error is the type of defect that would have justified relief pursuant to 28 U.S.C. § 2255. United States v. Doe, 867 F.2d 986 (7th Cir. 1989); Keane, 852 F.2d at 202-203, 206. Each of the three elements must be established; failure to establish any one element is an "independently sufficient reason[]" to deny the writ. Keane, 852 F.2d at 206. Iovine's petition falls short on at least the first element.

  A. Failure to Bring Claims on Appeal The Seventh Circuit has held unambiguously that a defendant may not raise claims on collateral attack, such as this, that could have been raised on direct appeal. Keane, 852 F.2d at 202 (citing United States v. Mayer, 235 U.S. 55, 69 (1914)). A defendant can defeat this requirement "only where `sound reasons' exist for the failure to seek appropriate earlier relief." United States v. Darnell, 716 F.2d 479, 481 (1983) (quoting Morgan, 346 U.S. 502, 511-12 (1954)). The requirement of demonstrating sound reasons for failure to seek earlier relief protects against "sandbagging." Moreover, ...

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