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.
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, ...