United States District Court, N.D. Illinois, Eastern Division
September 24, 2004.
United States of America Plaintiff,
Gregory J. Iovine Defendant.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
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.
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)
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, this requirement
encourages the efficient allocation of judicial resources and
supports the systemic interest in judgment finality. See
Morgan, 346 U.S. at 511.
The government argues that Iovine has procedurally defaulted on
his claims because he failed to file any direct appeal when he
was able to do so. "When an issue is not raised on direct appeal,
but later attacked collaterally via a petition for
post-conviction relief, the petitioner will be barred from
collateral review unless he can show good cause for failing to
raise the issue and actual prejudice." Galbraith v. United
States, 313 F.3d 1001 (7th Cir. 2002) (citing Bousley v.
United States, 523 U.S. 614, 622 (1998)); see also United
States v. Lane, 267 F.3d 715, 721 (7th Cir. 2001)
("[W]aiving or foregoing a direct appeal bars collateral attack
on the basis of most issues, even many constitutional issues,
that could have been raised on direct appeal.").
Petitioner claims the reason he failed to raise an appeal or
mount a collateral attack is that he was "not aware" that the
government dismissed the charges against his co-defendant.
(Pet'r's Mot. Under 28 U.S.C. Section 2255/1651, at 7.) The
government notes, however, that Iovine was in the courtroom when
the Court granted the government's motion to dismiss all charges
against Ienco. Moreover, Petitioner's own sentence was amended to
time served less than one week later, "based solely on the fact
that [Iovine] was still in prison while his more culpable
co-defendant was free and had no felony conviction on his record." (Gov't's
Resp. Br. at 7.) Iovine was represented by counsel throughout
these proceedings. See id. at 7-8. Iovine was present in the
courtroom when the government dismissed all charges against Ienco
and released him from custody. Iovine's attorney could have
learned that the Seventh Circuit had upheld this Court's decision
to suppress evidence in Ienco's trial and could have filed an
appropriate collateral attack while Iovine was still in custody,
but did not do so. For these reasons, Iovine has not provided
credible support for his claim that he was not aware that the
government had dismissed its charges against Ienco or for his
failure to raise his objections earlier. This Court finds that
Petitioner has failed to establish sound reasons for his failure
to seek appropriate earlier relief; therefore, Petitioner is
barred from raising these issues in a coram nobis proceeding.
B. Lingering Civil Disabilities
The Seventh Circuit has stated that "coram nobis may be
employed if and only if the petitioner is suffering civil
disabilities unique to criminal convictions." Id. Coram nobis
has its roots in Section 2255 habeas corpus relief for federal
prisoners. Habeas corpus relief, however, is unavailable to a
petitioner after release from custody. In this circumstance,
coram nobis presents the only avenue for collateral review.
United States v. Bush, 888 F.2d 1145, 1146-47 (7th Cir.
1989). The Seventh Circuit, however, has stated that the
petitioner must show a substitute for the "custody" requirement;
namely, that the petitioner is under a "substantial legal
disability" because of the conviction. Howard v. United States,
962 F.2d 651, 653 (7th Cir. 1992) (citing United States v.
Bush, 888 F.2d 1145, 1148, 1150-51 (7th Cir. 1989)). The
types of civil disabilities sufficient to justify coram nobis
relief include the "loss of the rights to vote, hold occupational licenses (including law licenses), and bear arms."
Id.; see also Howard, 962 F.2d at 654; United States v.
Craig, 907 F.2d 653, 659 (7th Cir. 1990).
Three elements comprise those lingering civil disabilities
which are sufficient to support coram nobis relief. First, the
disability must cause a present or ongoing harm. Second, it must
arise out of the allegedly wrongful conviction. Third, it must
pose a risk of more than incidental harm to the petitioner.
Howard v. United States, 962 F.2d at 654 (quoting United
States v. Craig, 907 F.2d 653, 658 (7th Cir. 1990), cert.
denied, 500 U.S. 917 (1991)). Petitioner alleges that he is
suffering "significant employment disabilities" because of his
conviction. Specifically, he asserts that he is unable to obtain
certification to work in municipal or school bus driving, because
his felony conviction acts as an automatic disqualification.
Finally, Petitioner states that municipal or school bus driving
is "the only occupation [he] is trained in." (Pet'r Aff. at 4.)
The government concedes that Petitioner experiences "lingering
adverse legal consequences from his conviction." (Gov't Resp. Br.
at 5.) An absolute bar from an occupation may establish a legal
disability, but "[d]ifficulty in obtaining a desirable job" does
not. United States v. Bush, 888 F.2d 1145, 1149 (7th Cir.
1989). Petitioner asserts that he is "unemployable in the only
industry or occupation that [he is] trained to participate in."
(Pet'r Aff. at 4.) Assuming Petitioner's rather bare assertion to
be true, and there is no dispute in the parties' briefs on this
point, Petitioner may be able to demonstrate that he is suffering
a lingering civil disability from his conviction. This Court does
not belittle Petitioner's occupational difficulty. However,
because he has failed to meet the first requirement for coram
nobis relief, his motion must be denied.
C. Alleged Error Would Have Justified § 2255 Relief Even if Iovine could satisfy both of the first two required
elements for coram nobis relief, he still would be required to
demonstrate that the alleged error was a "fundamental defect"
that resulted in a complete "miscarriage of justice." Keane,
852 F.2d at 205 (citation omitted). Petitioner seeks to meet this
element by asserting that his guilty plea was based on perjured
prosecution testimony, which resulted in an invalid plea and a
violation of his constitutional due process rights. For the
reasons discussed below, this argument is unavailing.
1. Guilty plea
A guilty plea is "more than a confession which admits that the
accused did various acts." United States v. Broce,
488 U.S. 563, 570 (1989) (quoting Boykin v. Alabama, 395 U.S. 238, 242
(1969)). It is an admission of guilt of a substantive crime.
Id. Petitioner alleges that his guilty plea was based on
perjured prosecution testimony which was improperly admitted at
his initial criminal trial. Therefore, petitioner asserts that
his plea was not knowing, intelligent, or voluntary, as required
by the United States Supreme Court. Brady v. United States,
397 U.S. 742 (1970).
Due process requires that a guilty plea be made voluntarily,
intelligently and knowingly, to be valid. Galbraith v. United
States, 313 F.3d 1001, 1006 (7th Cir. 2002) (citing Brady
v. United States, 397 U.S. 742, 747 (1970)). A plea is voluntary
in the constitutional sense if it is "entered by one fully aware
of the direct consequences" of the plea and is not induced by
threats, misrepresentation, or improper promises (e.g., bribes).
Brady, 397 U.S. at 755. A knowing and intelligent plea is one
entered by a defendant who is competent, informed of the charges,
and represented by competent counsel. Id. Moreover, the
"voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first
challenged on direct review." Bousley v. United States,
523 U.S. 614, 621 (1998).
First, petitioner argues that a guilty plea must be knowing and
voluntary to be valid and that, because of misrepresentations by
state agents, his guilty plea was neither. Petitioner relies on
Brady to support his contention that his guilty plea was not
voluntary or intelligent. This reliance is misplaced. The Brady
Court said that "absent misrepresentation or other impermissible
conduct by state agents, a voluntary plea of guilty intelligently
made in the light of the then applicable law does not become
vulnerable because later judicial decisions indicate that the
plea rested on a faulty premise." 397 U.S. at 757. As the Seventh
Circuit has stated, an intelligent plea is "the culmination of a
rational decision-making process, in which the accused assesses
numerous factors which bear upon his choice of whether to
formally admit his guilt or to put the State to its proof. The
plea must represent the informed, self-determined choice among
practicable alternatives." United States ex rel. Healey v.
Cannon, 553 F.2d 1052, 1056 (7th Cir. 1977). The plea
agreement clearly stated that Iovine "understands he is waiving
all appellate issues that might have been available if he had
exercised his right to indictment and trial, and only may appeal
the validity of this plea of guilty or the sentence." (Gov't Ex.
A at 12.). In this case, Iovine, who was represented by counsel,
chose to enter an unconditional guilty plea, reserving no issues
for appeal. Iovine and his counsel appear to have made a rational
decision, based on their assessment of the risks of trial. Iovine
and his counsel could have attempted to reserve the right to
appeal the denial of the suppression motion. They could have
appealed when the motion to suppress was granted in Ienco's
subsequent proceedings. They did not do any of these. Petitioner does not argue that he was not informed of the
charges against him, and indeed, the final provision of the plea
agreement states that defendant's signature acknowledges that he
and his attorney had read and reviewed the agreement together.
and that he understood and voluntarily accepted each and every
term of the agreement. (Gov't Ex. A at 15).
A plea is voluntary when the defendant "possesses an
understanding of the law in relation to the facts." The Federal
Rules of Criminal Procedure provide a safeguard for defendants
who seek to enter guilty pleas by requiring a judge to verify
that the defendant understands the substance of the plea and the
consequences thereof. Fed.R. Crim. P. 11(b). Moreover, the
judge must determine that the plea is voluntary and that it rests
on a factual basis. Id. Petitioner makes no attempt to argue
that the presiding judge in his original trial failed to conduct
a proper Rule 11 inquiry. By signing and entering his guilty
plea, Petitioner demonstrated that he understood "the law in
relation to the facts" and that he "voluntarily accept[ed] each
and every term and condition of [the plea] Agreement." (Gov't Ex.
A at 15).
A plea is intelligent when the defendant received "real notice
of the true nature of the charge against him." Bousley v. United
States, 523 U.S. 614, 618 (1998) (quoting Smith v. O'Grady,
312 U.S. 329 (1941)). The defendant must be "correctly informed
as to the essential nature of the charge against him." Id.
Petitioner does not argue that he was not correctly informed of the charges against him.*fn2 Iovine was represented by
counsel throughout the proceeding. For the reasons stated above,
Iovine has failed to demonstrate that his plea was not
However, even assuming Petitioner could show that his guilty
plea was not voluntary, intelligent, or knowing, his claim would
be procedurally barred, as discussed above. Petitioner entered an
unconditional guilty plea, served the entirety of his sentence,
and only then, after learning that his co-defendant had been
released with no felony conviction, sought to attack his
conviction. It is settled law that the voluntariness and
intelligence of a guilty plea may not be attacked on collateral
review unless first attacked on direct appeal. Bousley,
523 U.S. at 621. Petitioner did not raise a direct appeal when he had
the opportunity to do so and may not now use this extraordinary
writ to circumvent procedural limitations.
At best, Petitioner implies an ineffective assistance of
counsel argument as ground for his claim that his guilty plea was
invalid. This argument is unavailing. To prevail on an
ineffective assistance of counsel claim, Iovine first "must show
that counsel's representation fell below an objective standard of
reasonableness" and second, that "there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland
v. Washington, 466 U.S. 668, 688-694 (1984); Harding v.
Sternes, 380 F.3d 1034, 1044 (7th Cir. 2004) (citing
Strickland test as appropriate standard for evaluating
ineffective assistance of counsel claims). Petitioner does not assert,
perhaps because he cannot, that he was not advised of the
consequences of his plea. Petitioner's complaint, in sum, is that
it is unfair that he has a felony conviction on his record while
his former colleague, who was arguably more culpable, was
released with no mark on his record. Such a circumstance,
unwelcome as it is to Petitioner, is a risk inherent in the plea
bargaining process. In exchange for a lighter sentence, Iovine
elected to give up his claims that the arrest, seizure and
subsequent statements were the product of unconstitutional
conduct by the police. In retrospect, that was probably a poor
decision; however, hindsight is not the perspective that the
court must use. Petitioner has not met the required showing of a
fundamental defect in the proceedings against him that resulted
in a miscarriage of justice and, therefore, is not entitled to a
writ of coram nobis.
For the foregoing reasons, Iovine's "Motion to Vacate, Set
Aside, or Correct Sentence" is denied.