United States Court of Appeals For The Seventh Circuit

Case: 21-1691 Document: 16 Filed: 09/13/2021 Pages: 42
No. 21-1691
In the
United States Court of Appeals
for the Seventh Circuit
BRETT C. KIMBERLIN,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,

Respondent-Appellee.
On Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division
No. 1:18-cv-01141-TWP- MPB — Hon. Tanya Walton Pratt, Judge.
BRIEF OF THE UNITED STATES
JOHN E. CHILDRESS
Acting United States Attorney
Brian Reitz
Assistant United States Attorney
United States Attorney’s Office

10 W. Market Street, Suite 2100
Indianapolis, IN 46204
(317) 226-6333
TABLE OF CONTENTS
Page No.
JURISDICTIONAL STATEMENT ..................................................................... 1
STATEMENT OF THE ISSUES ......................................................................... 2
STATEMENT OF THE CASE ............................................................................ 3
SUMMARY OF THE ARGUMENT .................................................................. 10
ARGUMENT ...................................................................................................... 12
I. The District Court Correctly Denied Kimberlin’s Coram Nobis Petition,

Which Failed for Several Reasons ………………………..………………..12
A. Standard of Review ……………………………………………………… 12
B. As the District Court Found, Kimberlin’s Petition Necessarily Failed

Because It Could Not Relieve Him of All His Felony Convictions ...13
C. Additionally, Kimberlin’s Petition Did Not Meet Any of the

Requirements for Coram Nobis Relief .………………………………..17
II. No Compelling Reason Exists to Overturn Circuit Precedent in Order

to Expand the Scope of Coram Nobis………………………………………21
A. Standard of Review ……………………………………………………… 21
B. Kimberlin Has Not, and Cannot, Show a Compelling Reason to

Expand the Coram Nobis Remedy ……………………………………..22
CONCLUSION ................................................................................................... 32
i
TABLE OF AUTHORITIES
Cases Page No.
Allen v. Wright, 468 U.S. 737 (1984) ................................................................. 19
Carlisle v. United States, 517 U.S. 416 (1996) ................................................. 12
Cehovic-Dixneuf v. Wong, 895 F.3d 927 (7th Cir. 2018) .................................. 19
Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011) ............................ 12, 13
Foont v. United States, 93 F.3d 76 (2d Cir. 1996) ............................................ 18
Himely v. Rose, 9 U.S. 313 (1809) ..................................................................... 30
Howard v. United States, 962 F.2d 651 (7th Cir. 1992) ............................ 12, 19
In re Palacios, 931 F.3d 1314 (11th Cir. 2019) ................................................. 27
International Travelers Cheque Co. v. BankAmerica Corp.,

660 F.2d 215 (7th Cir. 1981) .......................................................................... 23
Isunza v. Lynch, 809 F.3d 971 (7th Cir. 2016) ........................................... 19, 31
Kenner v. C.I.R., 387 F.2d 689 (7th Cir. 1968) ................................................. 25
Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. 1994) ............................................. 5
Kimberlin v. U.S. Parole Comm'n, 01-1212………..………………………………6
Kimberlin v. White, 7 F.3d 527 (6th Cir. 1993) ...................................... 1, 3, 4, 5
Kimberlin v. White, 7 F.3d 528 (6th Cir. 1993)……………………………… ……3
Lexmark Int'l, Inc. v. Static Control Components, Inc. 572 (2014)…………...19
Members of City Council of City of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984) ........................................................................................ 16
Messinger v. Anderson, 225 U.S. 436 (1912) .................................................... 30
ii
Molina-Martinez v. United States, 578 U.S. __, 136 S. Ct. 1338 (2016) ......... 22
Naeem v. McKesson Drug Co., 444 F.3d 593 (7th Cir. 2006) ........................... 24
Nordahl v. United States, 425 F. App’x 35 (2d Cir. 2011) ............................... 18
Nunez-Moron v. Holder, 702 F.3d 353 (7th Cir. 2012)..................................... 21
Peoples v. United States, 403 F.3d 844 (7th Cir. 2005) .................................... 30
Rehaif v. United States, 588 U.S. __, 139 S. Ct. 2191 (2019) ...................passim
Roberts v. Cooper, 61 U.S. 467 (1858) ............................................................... 30
Santos v. United States, 461 F.3d 886 (7th Cir. 2006) ..................................... 21
Teague v. Lane, 489 U.S. 288 (1989) ................................................................. 27
Tucker v. Williams, 682 F.3d 564 (7th Cir. 2012) ............................................ 27
United States v. Addonizio, 442 U.S. 178 (1979) ............................................. 20
United States v. Alvarez, 567 U.S. 709 (2012) ........................................ 7,15, 16
United States v. Ausby, 916 F.3d 1089 (D.C. Cir. 2019) .................................. 22
United States v. Baker, 718 F.3d 1204 (10th Cir. 2013) .................................. 25
United States v. Bonansinga, 855 F.2d 476 (7th Cir. 1988) ............................ 20
United States v. Bonin, 932 F.3d 523 (7th Cir. 2019) ...............................passim
United States v. Bush, 888 F.2d 1145 (7th Cir. 1989) ......................... 13, 17, 19
United States v. Cooper, 243 F.3d 411 (7th Cir. 2001) .................................... 30
United States v. Craig, 907 F.2d 653 (7th Cir.).........................................passim
United States v. Darnell, 716 F.2d 479 (7th Cir. 1983) ............................. 12, 18
United States v. Delhorno, 915 F.3d 449 (7th Cir. 2019) ................................. 20
iii
United States v. Dellinger, 657 F.2d 140 (7th Cir. 1981) ........................... 12, 20
United States v. Denedo, 556 U.S. 904 (2009) .................................................. 12
United States v. Fattah, 858 F.3d 801 (3d Cir. 2017) ...................................... 24
United States v. Fulford, 980 F.2d 1110 (7th Cir. 1992) ................................. 24
United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. 2005) ................. 24, 30
United States v. Keane, 852 F.2d 199 (7th Cir. 1988) ...............................passim
United States v. Kimberlin, 675 F.2d 866 (7th Cir. 1982) ................................. 5
United States v. Kimberlin, 776 F.2d 1344 (7th Cir. 1985) ......................... 5, 10
United States v. Kimberlin, 781 F.2d 1247 (7th Cir. 1985) ............................... 4
United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986) ........................passim
United States v. Kimberlin, 898 F.2d 1262 (7th Cir. 1990) ........................... 5, 6
United States v. Lamon, 893 F.3d 369 (7th Cir. 2018) .................................... 21
United States v. Lara-Unzueta, 735 F.3d 954 (7th Cir. 2013) ................... 21, 22
United States v. Lepowitch, 318 U.S. 702 (1943) ............................................... 9
United States v. Maez, 960 F.3d 949 (7th Cir. 2020) ....................................... 29
United States v. Mayer, 235 U.S. 55 (1914) ...................................................... 17
United States v. Olano, 507 U.S. 725 (1993) .................................................... 24
United States v. Scherer, 673 F.2d 176 (7th Cir. 1982) ............................. 20, 27
United States v. Sloan, 505 F.3d 685 (7th Cir. 2007) .......................... 13, 14, 19
United States v. Smith, 331 U.S. 469 (1947) .................................................... 16
iv
United States v. Taylor, 627 F.3d 674 (7th Cir. 2010) ..............................passim
United States v. Thomas, 897 F.3d 807 (7th Cir. 2018) ................................... 22
United States v. Tomsha-Miguel, 766 F.3d 1041 (9th Cir. 2014) ...................... 9
United States v. Wade, 962 F.3d 1004 (7th Cir. 2020) ..................................... 16
United States v. Wilkozek, 822 F.3d 364 (7th Cir. 2016) ..........................passim
United States v. Williams, 790 F.3d 1059 (10th Cir. 2015) ............................. 25
United States v. Williams, 931 F.3d 570 (7th Cir. 2019) ................................. 21
United States v. Williams, 946 F.3d 968 (7th Cir. 2020) ................................. 29
Weise v. United States, 724 F.2d 587 (7th Cir. 1984) ....................................... 23
Statutes
18 U.S.C. § 701 ................................................................................................. 1, 4
18 U.S.C. § 704 ................................................................................................... 15
18 U.S.C. § 713 ................................................................................................. 1, 4
18 U.S.C. § 713(a) ……… …………………………………………………………… 4
18 U.S.C. § 842 ..................................................................................................... 1
18 U.S.C. § 842(i)(1) ................................................................................. 4, 28, 29
18 U.S.C. § 844 ..................................................................................................... 1
18 U.S.C. § 844(f) ................................................................................................. 4
18 U.S.C. § 844(i) ................................................................................................. 4
18 U.S.C. § 912 ............................................................................................passim
18 U.S.C. § 922 ..................................................................................................... 1

v
18 U.S.C. § 922(g) .............................................................................................. 28
18 U.S.C. § 922(g)(1) ............................................................................................ 4
18 U.S.C. § 924(a)(2) .......................................................................................... 28
18 U.S.C. § 1623 ................................................................................................. 28
18 U.S.C. § 3231 ................................................................................................... 1
18 U.S.C. § 3600 ............................................................................................. 6, 31
26 U.S.C. § 5861 .................................................................................................. 1
26 U.S.C. § 5861(d) .............................................................................................. 4
26 U.S.C. § 5861(f) ............................................................................................... 4
26 U.S.C. § 5871 ............................................................................................... 1, 4
28 U.S.C. § 1291 ................................................................................................... 1
28 U.S.C. § 1495 ................................................................................................. 31
28 U.S.C. § 1651 ................................................................................................... 1
28 U.S.C. § 1651(a) ............................................................................................ 12
28 U.S.C. § 2255………………………………………………………………………..6
Regulations
28 C.F.R. § 2.5 ...................................................................................................... 5
vi
Other
The Indianapolis Star, Bizarre plots planned by Speedway bomber: Kimberlin

case a maze of murder, deceit, available at
https://web.archive.org/web/20120526093504/http:/www.indystar.com/asset
s/pdf/BG164276919.PDF (last visited August 24, 2021)................................ 3
vii
JURISDICTIONAL STATEMENT
The appellant’s jurisdictional statement is not complete and correct.
The United States District Court for the Southern District of Indiana had
jurisdiction over Brett C. Kimberlin under 18 U.S.C. § 3231. That
jurisdiction was based on an indictment, filed in 1979, charging Kimberlin
with offenses under 18 U.S.C. §§ 701, 713, 842, 844, 912, & 922; 26 U.S.C.
§§ 5861 & 5871. (Crim. R. 1.) Over the course of three trials, Kimberlin was
convicted on 33 counts and sentenced to approximately 51 years
imprisonment (Id.); Kimberlin v. White, 7 F.3d 527, 529 (6th Cir. 1993).
Kimberlin was released from imprisonment in 2001. (R. 96, p. 2.)
In 2018, Kimberlin filed a petition for writ of error coram nobis under
28 U.S.C. § 1651. (R. 30, 73, 77); cf. United States v. Wilkozek, 822 F.3d 364,
368 (7th Cir. 2016) (Section 1651 “is not a font of jurisdiction” thus “the
district court’s power to hear a petition for the writ derives from” § 3231).
The district court denied Kimberlin’s petition on February 28, 2020.
(R. 83, 96.) On March 18, 2020, Kimberlin filed a motion to reconsider. (R.
86, 88.) The district court denied, in pertinent part, Kimberlin’s motion to
reconsider on March 17, 2021. (R. 95.) That was a final, appealable order.
Kimberlin filed a timely notice of appeal on April 19, 2021. (R. 98.)
This Court has jurisdiction over this appeal under 28 U.S.C. § 1291.
1
STATEMENT OF THE ISSUES
1. Whether the district court erred when denying Kimberlin’s coram
nobis petition, where he could not meet any of the requirements for relief.
2. Whether a compelling reason exists to overturn circuit precedent
with respect to coram nobis requirements.
2
STATEMENT OF THE CASE
This is an appeal of the district court’s denial of Brett C. Kimberlin’s
petition for writ of error coram nobis. 1
The Speedway Bomber
Forty years ago, Kimberlin was convicted as the “Speedway Bomber.” 2
Kimberlin v. White, 7 F.3d 527, 528 (6th Cir. 1993); (R. 96). That moniker
was fitting: He “terrorized the city of Speedway, Indiana, by detonating a
series of explosives in early September 1978.” Kimberlin, 7 F.3d at 528.
In the worst incident, Kimberlin placed one of his bombs in a gym bag
and left it in a parking lot outside Speedway High School. Id. Carl DeLong
was leaving a high school football game with his wife when he attempted to
pick up the bag and it exploded. Id. The blast tore off his lower right leg and
two fingers, and embedded bomb fragments in his wife’s leg. Id. He was
hospitalized for six weeks, during which he was forced to undergo nine
operations to complete the amputation of his leg, reattach two fingers, repair
damage to his inner ear, and remove bomb fragments from his stomach,
1 Throughout this brief, the government will make the following references:
(R. = District Court Docket Number); (Crim. R. = Record in Kimberlin’s
Criminal Case, No. 1:79-cr-00007-TWP-MJD); (A. Br. = Appellant’s Brief).
2 See also The Indianapolis Star, Bizarre plots planned by Speedway bomber:
Kimberlin case a maze of murder, deceit, available at

https://web.archive.org/web/20120526093504/http:/www.indystar.com/assets/
pdf/BG164276919.PDF (last visited August 24, 2021).
3
chest, and arm. Id. at 528–29. In February 1983, DeLong committed suicide.
Id. at 529.
Kimberlin, beyond his indiscriminate bombing of a small Indiana town,
had other brushes with the law. In 1974, he was convicted of perjury in the
Southern District of Indiana. (R. 96, p. 2.) Then, in 1979, he was convicted of
conspiracy to possess with intent to distribute 4,000 pounds of marijuana in
Texas. (R. 96, p. 2 & n.1.)
“Strong” Evidence of Kimberlin’s Guilt
For his crimes related to the Speedway bombings, Kimberlin was
charged in a 34-count indictment in 1979. Those charges were as follows:
16 counts of possession and manufacture of destructive devices, see 26 U.S.C.
§§ 5861(d), (f) & 5871; six counts of maliciously causing damage by means of
explosives, see 18 U.S.C. § 844(f), (i); two counts of felon in possession of
explosives, see 18 U.S.C. § 842(i)(1); one count of illegally transporting
ammunition, 18 U.S.C. § 922(g)(1); five counts of unlawful possession of an
official insignia of the Department of Defense (DOD) and a Presidential seal,
see 18 U.S.C. §§ 701 & 713(a); and four counts of falsely impersonating a
DOD official, see 18 U.S.C. § 912. (Crim. R. 1); United States v. Kimberlin,
805 F.2d 210, 215–16 (7th Cir. 1986); United States v. Kimberlin, 781 F.2d
1247, 1248 (7th Cir. 1985).
4
Kimberlin was tried over the course of three trials in 1980 and 1981.
(R. 96, p. 1.) At the two-month trial for the Speedway bombings, the
government marshalled “strong, albeit circumstantial, support for the guilty
verdict.” Kimberlin, 805 F.2d at 216, 221.
Ultimately, Kimberlin was convicted on 33 of the 34 counts (he was
acquitted on one impersonation count). 3 Kimberlin, 781 F.2d at 1248; cf.
United States v. Kimberlin, 776 F.2d 1344, 1348 (7th Cir. 1985) (noting the
merger of the two receiving explosives counts).
He was sentenced to a 50-year term of imprisonment for his bombing
offenses, 12 years for the impersonation offenses, and five years for receiving
explosives. (Crim. R. 1); United States v. Kimberlin, 675 F.2d 866, 867 (7th
Cir. 1982); Kimberlin, 7 F.3d at 529. Under 28 C.F.R. § 2.5, his sentences
were aggregated to a single term of 51 years, six months, and 19 days.
Kimberlin, 7 F.3d at 529.
Kimberlin challenged his convictions on numerous occasions. (See R.
37, pp. 12–13 (citing cases).); cf. United States v. Kimberlin, 898 F.2d 1262,
1264 (7th Cir. 1990) (“Kimberlin is no stranger to appellate proceedings” and
“has averaged two appeals per year in this court over the last decade.”).
3 Nor were those three juries the only jury that found him responsible. In
state court, a jury awarded victims of his bombing a $1.6 million civil
judgment. Kimberlin v. DeLong, 637 N.E.2d 121, 130 (Ind. 1994).
5
Kimberlin was initially paroled in 1994. Kimberlin v. U.S. Parole
Comm’n, No. 01-1212 (D.D.C. Sept. 30, 2002). In 1997, his parole was
revoked because, in part, he submitted a fraudulent mortgage loan
application. Id. Ultimately, he was released from imprisonment in 2001. (R.
96, p. 2.)
Kimberlin’s Coram Nobis Petition
Seventeen years later, Kimberlin launched a barrage of filings. Across
at least 12 motions, he raised several claims: First Amendment violations;
ineffective assistance of counsel; improper hair analysis; juror misconduct;
discovery violations; objections to the hypnosis; and a claim under Rehaif v.
United States, 588 U.S. __, 139 S. Ct. 2191 (2019). (R. 1, 18, 20, 21, 22, 26,
30, 31, 32, 33, 48, 77.) Some of his filings were styled as § 28 U.S.C. 2255
petitions, some as coram nobis petitions; some were pro se, some by counsel.
(Id.)
The district court consolidated Kimberlin’s motions—bar his motion
under 18 U.S.C. § 3600, which remained in his original criminal case—into
one coram nobis action. (R. 29.)
In 2020, the district court denied Kimberlin’s coram nobis. (R. 96.)
First, the court found that Kimberlin’s convictions in other cases barred his
claim:
6
. . . because he has been convicted of multiple felonies in separate

trials, including a 1974 perjury conviction in this Court, Case No.
IP 73-cr-132, and the 1979 conspiracy to distribute marijuana
conviction in Texas (as referenced in Kimberlin, 805 F.2d at 225),
neither of which are at issue here, a successful challenge to any
one conviction will not relieve him of these impediments. See
United States v. Keane, 852 F.2d 199, 205 (7th Cir. 1988) (“a
single felony conviction supports any civil disabilities and
reputational injury [a convicted felon] may have to endure”).
(R. 96, p. 4 (assuming without deciding that Kimberlin suffered an
impediment.)
Second, the court addressed one argument Kimberlin raised: His
constitutional challenge to his convictions under § 912. (R. 96, pp. 5–7.) The
court found that Kimberlin’s challenge failed:
Last year, the Seventh Circuit addressed an argument

similar to Kimberlin’s in United States v. Bonin, 932 F.3d 523
(7th Cir. 2019). In Bonin, the Seventh Circuit rejected the
defendant’s attempt to extend the reasoning of [United States v.]
Alvarez [567 U.S. 709 (2012)] to overturn his conviction under 18
U.S.C. § 912 for impersonating a United States Marshal. The
Seventh Circuit squarely held that the acts-as-such clause of
§ 912 is narrowly drawn to serve the government’s compelling
interests of protecting the integrity of government processes. Id.
at 536 (citing Alvarez, 567 U.S. at 721).
Undeterred, Kimberlin argues that Bonin left the door open

for challenges to § 912 in less egregious cases such as his, but this
Court disagrees. The Seventh Circuit rejected Bonin’s argument
that, if allowed to stand, 18 U.S.C § 912 could be used to
prosecute people for simply wearing Halloween costumes. But
that was in the context of Bonin’s void for vagueness challenge,
not his facial challenge under Alvarez, and the Seventh Circuit
ultimately avoided evaluating his void for vagueness challenge
because his conduct—claiming to be a U.S. Marshal and
displaying a weapon in a theater as a way to intimidate other
7
moviegoers who asked him to stop talking on his cell phone—

clearly violated § 912.
The same can be said of Kimberlin’s conduct. He was not on

his way to a Halloween party when he stopped to have a calendar
or party invitations printed. The evidence at his trial
demonstrated that he wore a DOD patch on his shirt and
attempted to have copies made of the presidential seal. It makes
no difference that the copies were never made for Kimberlin. It
was reasonable for the jury to conclude that he wore the DOD
patch to deceive the copy store employee so that he or she would
copy the presidential seal for him and the impersonation was to
falsely imply that he was government official. Bonin held that
public safety and protection of the reputation of law enforcement
were compelling interests and § 912 is narrowly drawn to protect
that interest. Thus, Kimberlin’s First Amendment challenge is
foreclosed by Bonin.
(R. 96, pp. 6–7.)
Thus, based on “these felony convictions, and his other unrelated felony
convictions,” the court held that it “need not address Kimberlin’s [other]
arguments.” (R. 96, p. 7; see also id. at pp. 4–5.)
Kimberlin filed a motion for reconsideration. (R. 86, 88.) In pertinent
part, he claimed: (1) that he was not guilty of the § 912 convictions because
he did not successfully deceive anyone; and (2) the United States committed
fraud upon the court at his bombing trial. (R. 86, 88.)
The court denied that motion as well (while granting it, in part, to omit
two sentences from its original order). (R. 95.) As to Kimberlin’s § 912 claim,
the court explained:
8
Kimberlin argues that he is not guilty under the “acts as such”

clause of § 912 because the copy store employee did not make the
copies he requested. He asserts that to be guilty of the charged
offenses, he must have succeeded in deceiving a person into a
course of conduct they would not otherwise have pursued. But
that is not the case. The statute only requires that a defendant
“sought to cause the deceived person to follow some course he
would not have pursued but for the deceitful conduct.” Bonin, 932
F.3d 523, 536 (7th Cir. 2019) (citing United States v. Lepowitch,
318 U.S. 702, 704 (1943); United States v. Tomsha-Miguel, 766
F.3d 1041, 1049 (9th Cir. 2014)).
(R. 95, pp. 5–6 (internal record citations omitted).)
The court denied Kimberlin’s fraud on the court claim as well:
The Court is sympathetic to Kimberlin’s argument that the Court

should address alleged fraud on the judicial system even if it
would not relieve him of all his felony convictions. But the
Seventh Circuit previously determined that the evidence in
support of Kimberlin’s bombing convictions was strong. United
States v. Kimberlin, 805 F.2d 210, 221 (7th Cir. 1986). And
without more than speculation to support the existence of a fraud
on the court by the Government, the Court is reluctant to invest
additional resources in further litigating Kimberlin’s claims as to
his bombing trial which occurred forty years ago in the spring of
1981. His coram nobis litigation has already consumed
significant court resources. And additional litigation in this case
will not relieve Kimberlin of all of his felony convictions. As the
Seventh Circuit noted in Keane, “[a]t some point the judicial
system must close old files and turn to the future, regretfully
accepting the risk of error lest the quest for perfect justice become
the enemy of adequate justice.” 852 F.2d at 206.
(R. 95, p. 8 (internal record citations omitted).)
9
SUMMARY OF THE ARGUMENT
Forty years after his convictions, and 20 years after his release from
prison, Kimberlin renewed his persistent attacks on his convictions.
The historical nature of this case created obvious problems. Interested
parties are retired or deceased. A member of this Court called the (paper)
record “disheveled”—36 years ago. Kimberlin, 776 F.2d at 1350 (Ripple, J.,
dissenting).
The district court deftly avoided these problems while also rendering a
fair adjudication of Kimberlin’s petition. As the court found, Kimberlin could
not overcome one straightforward coram nobis requirement: He would
remain a felon irrespective of his petition. One, he had two felony convictions
from other cases that he did not challenge. Two, under this Court’s recent
precedent, Kimberlin’s convictions under § 912 were valid.
This Court should affirm on that ground alone. The district court’s
decision was correct and an efficient use of judicial resources. In all events,
multiple grounds for affirmance exist because Kimberlin cannot meet any of
the requirements for coram nobis relief.
Kimberlin, for the most part, appears to accept his fate under
governing law. Undeterred, he asks the Court to expand the reach of coram
nobis. But he fails to offer any compelling reason to overturn precedent.
10
Even if he could, he would not be entitled to relief because his claims are
substantively meritless.
This Court should affirm.
11
ARGUMENT
I. The District Court Correctly Denied Kimberlin’s Coram Nobis

Petition, Which Failed for Several Reasons
A. Standard of Review
The writ of coram nobis, 28 U.S.C. § 1651(a), provides a method for
collaterally attacking a criminal conviction when a defendant is not in
custody. Chaidez v. United States, 655 F.3d 684, 687 (7th Cir. 2011); Howard
v. United States, 962 F.2d 651, 653 (7th Cir. 1992).
Coram nobis is an “extraordinary remedy” reserved for “extreme cases.”
United States v. Denedo, 556 U.S. 904, 916 (2009). In fact, “it is difficult to
conceive of a situation in a federal criminal case today where a writ of coram
nobis would be necessary or appropriate.” Carlisle v. United States, 517 U.S.
416, 429 (1996) (citing United States v. Smith, 331 U.S. 469, 475 n.4 (1947)).
Thus, coram nobis petitioners face a “heavy burden.” United States v.
Darnell, 716 F.2d 479, 481 n.5 (7th Cir. 1983) (citing United States v.
Dellinger, 657 F.2d 140, 144 n.6 (7th Cir. 1981)). Because “judgment finality
is not to be lightly cast aside . . . courts must be cautious” in granting coram
nobis relief. Denedo, 556 U.S. at 916. As this Court has explained:
The reason to bend the usual rules of finality is missing when

liberty is not at stake. Courts must conserve their scarce time to
resolve claims of those who have yet to receive their first decision.
12
United States v. Sloan, 505 F.3d 685, 698 (7th Cir. 2007) (citing Keane, 852
F.2d at 204) (emphasis in Sloan). Such “continual reexamination of old
convictions ‘subtracts from the time available to deal with festering
grievances’ of today.” United States v. Craig, 907 F.2d 653, 658 (7th Cir.
1990) (quoting United States v. Bush, 888 F.2d 1145, 1150 (7th Cir. 1989)).
This Court—“[t]o the extent that the writ of coram nobis retains
vitality in criminal proceedings”—has outlined a three-part test. Sloan, 505
F.3d at 697. “In our circuit coram nobis relief is available when: (1) the error
alleged is ‘of the most fundamental character’ as to render the criminal
conviction ‘invalid’: (2) there are ‘sound reasons’ for the defendant’s ‘failure to
seek relief earlier’; and (3) ‘the defendant continues to suffer from his
conviction even though he is out of custody.’” United States v. Wilkozek, 822
F.3d 364, 368 (7th Cir. 2016) (quoting Sloan, 505 F.3d at 697).
When reviewing a district court’s denial of a coram nobis, this Court
reviews conclusions of law de novo and findings of fact for clear error. Id.
(citing Chaidez, 655 F.3d at 687).
B. As the District Court Found, Kimberlin’s Petition

Necessarily Failed Because It Could Not Relieve Him of
All His Felony Convictions
The district court correctly pinpointed an obvious barrier to Kimberlin’s
petition: He would remain a felon irrespective of the petition. (R. 96, p. 4.)
And that is “the end of things, for a single felony conviction supports any civil
13
disabilities and reputational injury [Kimberlin] may have to endure.” Keane,
852 F.2d at 205; see also Craig, 907 F.2d at 658 n.2.
In doing so, the court both adhered to coram nobis doctrine, Keane, 852
F.2d at 205, and an overarching jurisprudential goal for courts to “conserve
their scare time,” Sloan, 505 F.3d at 698. Out of respect for the court’s
correct and conscientious order, the United States similarly focuses on these
clear barriers to Kimberlin’s claim.
1. Kimberlin’s Unrelated and Unchallenged Convictions

Precluded His Petition
First, Kimberlin has felony convictions outside the scope of his coram
nobis petition—perjury in 1974 and conspiracy to distribute marijuana in
1979. (See R. 96, p. 4.)
These convictions preclude his claim here. Keane, 852 F.2d at 205; see
also Craig, 907 F.2d at 658 n.2. Kimberlin says nothing about these
convictions on appeal. (See A. Br.) And, while the district court did not rest
its decision solely on these convictions, this Court “may affirm the judgment
of the district court on any ground supported in the record.” United States v.
Taylor, 627 F.3d 674, 676 (7th Cir. 2010).
These convictions are sufficient reason to affirm.
14
2. Kimberlin’s Valid Convictions Under § 912 Also Precluded His

Petition
Next, the district court reinforced its denial by addressing one of the
claims Kimberlin raised—his challenge to his § 912 convictions. (R. 96, pp.
5–7.)
Section 912 provides:
Whoever falsely assumes or pretends to be an officer or employee

acting under the authority of the United States or any
department, agency or officer thereof, and acts as such, or in such
pretended character demands or obtains any money, paper,
document, or thing of value, shall be fined under this title or
imprisoned not more than three years, or both.
Id.
As the district court correctly held, United States v. Bonin, 932 F.3d
523 (7th Cir. 2019), controlled. (R. 95, 96.) Bonin addressed the applicability
of United States v. Alvarez, 567 U.S. 709 (2012)—which held that speech
restrictions under 18 U.S.C. § 704 violated the First Amendment—to
convictions under § 912. Bonin, 932 F.3d at 531–32. Like Bonin, Kimberlin
contended that Alvarez rendered § 912 unconstitutional as well. Id.
Bonin rejected that claim. First, this Court noted that “a plurality of
the [Alvarez] Court described § 912 as a ‘permissible’ restriction on false
speech.” Id. at 534 (citing Alvarez, 567 U.S. at 720–21). And, in fact, § 912
survived “most exacting scrutiny” because it “is narrowly drawn to serve the
15
government’s compelling interest.” Id. at 534–36. Any facial constitutional
challenge to § 912 fails. Id.
Bonin also rejected the overbreadth claim Kimberlin raises. For a
statute to be overly broad, “there must be a realistic danger that the statute
itself will significantly compromise recognized First Amendment protections.”
Id. at 537 (citing Members of City Council of City of Los Angeles v. Taxpayers
for Vincent, 466 U.S. 789, 800 (1984)). Like Bonin, Kimberlin “offers weak
examples” like “theater and Halloween.” Id.; (A. Br. 31). But “[t]hese far-
fetched hypotheticals do not presage any risk that the acts-as-such clause
will cause third parties to avoid constitutionally protected speech.” Id. Thus,
Kimberlin’s “hypothetical cadre of costume wearers and regretful suitors fail
to satisfy [overbreadth’s] conditions.” Id.
Kimberlin also misconstrues both this Court’s precedents and the
district court’s order. (A. Br. 32–34.) He wrongly says the court relied on an
attempt theory. (Id.) Instead, the court correctly explained that § 912 did
not require successful deceit. (R. 95, pp. 5–6.) That comports with the law:
§ 912 requires only that Kimberlin “sought to deceive.” Bonin, 932 F.3d at
536; see also United States v. Wade, 962 F.3d 1004, 1010 (7th Cir. 2020).
Kimberlin’s crime was a completed § 912 offense. (R. 95, p 5.)
With no viable constitutional or statutory claim, Kimberlin’s argument
disintegrates into a belated sufficiency of the evidence claim. But “[c]laims
16
that could have been raised by direct appeal are outside the scope of the
writ.” Keane, 852 F.2d at 202 (citing United States v. Mayer, 235 U.S. 55, 69
(1914)). In all events, Kimberlin wore full DOD regalia to persuade a copy
store employee to copy a presidential seal. (See R. 96, pp. 6–7.) His decades-
late sufficiency challenge is untimely and untenable.
Because this challenge fails, Kimberlin’s coram nobis necessarily fails.
Keane, 852 F.2d at 205; see also Craig, 907 F.2d at 658 n.2. Like the district
court, this Court need go no further. This Court should affirm.
C. Additionally, Kimberlin’s Petition Did Not Meet Any of the

Requirements for Coram Nobis Relief
The district court’s analysis was sufficient to deny Kimberlin’s petition.
See supra Part I.B. Without belaboring the point, the court’s order is
sustainable for other reasons as well. Taylor, 627 F.3d at 676. Kimberlin’s
petition failed to meet any of the coram nobis requirements:
1. Kimberlin Did Not Have a Sound Reason for Failing to Seek

Relief Sooner
First, Kimberlin failed to show a reason for not seeking relief sooner.
Wilkozek, 822 F.3d at 368. His petition was barred unless he “present[ed]
questions that could not have been resolved at the time of the conviction.”
Bush, 888 F.2d at 1146.
But the bulk of his claims revolved around his trial from 40 years ago.
(See R. 37, pp. 23–27.) Other claims, including his § 912 attack and his claim
17
regarding the FBI’s 2015 hair analysis review, were several years tardy. (See
R. 37 pp. 24, 26–27.)
Kimberlin has no sound reason for his lack of diligence. 4 See, e.g.,
Nordahl v. United States, 425 F. App’x 35 (2d Cir. 2011) (unpublished)
(rejecting petition after three-and-a-half-year-delay); Foont v. United States,
93 F.3d 76 (2d Cir. 1996) (rejecting petition after five-year delay); United
States v. Darnell, 716 F.2d 479, 481 (7th Cir. 1983) (“a twenty-year delay is
strong evidence of a lack of reasonable diligence”).
Further, for similar reasons, laches barred Kimberlin’s petition. (R. 37,
pp. 19–20); Darnell, 716 F.2d at 481 (20-year delay barred coram nobis
petition under laches).
Kimberlin’s lack of diligence offers another ground to affirm. Taylor,
627 F.3d at 676.
2. Kimberlin Did Not Show a Lingering Disability
The district court assumed, without deciding, that Kimberlin had a
lingering disability. (R. 96, p. 4.) That assumption was understandable
considering it allowed the court to cut to the chase. See Supra Part I.B.
But Kimberlin did not show a lingering disability. He “must [have]
show[n] that there [wa]s an ongoing risk that an erroneous conviction’s
4 The one exception is his Rehaif claim, based on a 2019 case, which was
timely raised.
18
lingering disabilities will cause him serious harm.” Sloan, 505 F.3d at 697
(citing Bush, 888 F.2d at 1150–51; Craig, 907 F.2d at 658). A “lingering civil
disability” exists if: (1) the disability causes present harm; (2) the disability
arose out of the erroneous conviction; and (3) the potential harm is more than
incidental. Id. (citing Craig, 907 F.2d at 658). The alleged legal disability
must be “substantial.” Howard, 962 F.2d at 653–654.
Kimberlin’s claims were not substantial. His alleged impediments
included an inability to obtain government grants, obtain car loans, sit on a
jury, and renew his pilot’s license. (R. 3, 67, 96, p. 4.)
But those are typical impediments suffered by felons. His “conviction is
a black mark, but that is not a civil disability.” Keane, 852 F.2d at 204. “A
strong emotional interest is not enough to produce an Article III case or
controversy, and a blot on one’s escutcheon, divorced from any particular
entitlement to a ‘clean record,’ does not even involve a liberty interest.” Id.
(citing Allen v. Wright, 468 U.S. 737, 754–56 (1984), abrogated on other
grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.
118 (2014)).
Kimberlin later attempted to buttress his impediments in his motion to
reconsider, citing his civil judgment. (R. 86.) But a “motion to reconsider is
not an opportunity to raise new arguments.” Isunza v. Lynch, 809 F.3d 971,
973 (7th Cir. 2016); see also Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th
19
Cir. 2018). Regardless, “the prospect of getting money back is not enough by
itself to support belated review.” Keane, 852 F.2d at 204.
This offers another ground to affirm. Taylor, 627 F.3d at 676.
3. Finally, Kimberlin Did Not Show a Fundamental Defect in His

Convictions
Kimberlin also did not show a fundamental defect. To do so, he must
show a “defect[] that sap[s] the proceeding of any validity.” Keane, 852 F.2d
at 203 (citing United States v. Addonizio, 442 U.S. 178, 186 (1979); United
States v. Scherer, 673 F.2d 176, 178 (7th Cir. 1982); Dellinger, 657 F.2d at
144). That means “the error in [his] criminal conviction must be ‘of the most
fundamental character’ so as to render the conviction ‘invalid.’” United States
v. Delhorno, 915 F.3d 449, 453 (7th Cir. 2019) (quoting Wilkozek, 822 F.3d at
368). In other words, “a complete miscarriage of justice.” United States v.
Bonansinga, 855 F.2d 476, 478 (7th Cir. 1988) (citing Scherer, 673 F.2d at
178).
But, as discussed both above and below, Kimberlin’s convictions remain
valid. See supra Part I.B.2; infra Part II; (R. 37, pp. 27–49.)
20
II. No Compelling Reason Exists to Overturn Circuit Precedent in

Order to Expand the Scope of Coram Nobis
A. Standard of Review
Because he cannot meet the requirements for coram nobis relief,
Kimberlin attempts to circumvent those requirements. (A. Br. 12–30, 34–41.)
But this Court “require[s] a compelling reason to overturn circuit
precedent.” United States v. Lara-Unzueta, 735 F.3d 954, 961 (7th Cir. 2013)
(citing Nunez-Moron v. Holder, 702 F.3d 353, 357 (7th Cir. 2012)).
Disagreement with a prior holding does not suffice. United States v.
Williams, 931 F.3d 570, 574 (7th Cir. 2019) (citing United States v. Lamon,
893 F.3d 369, 372 (7th Cir. 2018)). Instead, “principles of stare decisis
require that [this Court] give considerable weight to prior decisions of this
court unless and until they have been overruled or undermined by the
decisions of a higher court, or other supervening developments, such as a
statutory overruling.” Lara-Unzueta, 735 F.3d at 961 (citing Santos v. United
States, 461 F.3d 886, 891 (7th Cir. 2006)).
That standard is even more taxing here. Other than his fraud claim,
Kimberlin did not argue below that he was exempt from coram nobis
restrictions. (See R. 95, 96.)
Thus, with respect to these claims, Kimberlin must “show (1) an error .
. .; (2) that the error was ‘plain—that is to say, clear or obvious;’ (3) that the
21
error affected his substantial rights; and (4) that the error ‘seriously affects
the fairness, integrity or public reputation of the judicial proceedings.’”
United States v. Thomas, 897 F.3d 807, 812, 818 (7th Cir. 2018) (quoting
Molina-Martinez v. United States, 578 U.S. __, 136 S. Ct. 1338, 1343 (2016)).
B. Kimberlin Has Not, and Cannot, Show a Compelling

Reason to Expand the Coram Nobis Remedy
This Court should not expand access to coram nobis relief. This Court’s
coram nobis standard has not been overruled or undermined by the Supreme
Court or statute. Lara-Unzueta, 735 F.3d at 961.
Instead, Kimberlin merely wants to expand coram nobis to fit his
personal whims. That is not a compelling reason to overturn precedent. Id.
But, even if it were, Kimberlin’s claims, procedural bars aside, are
substantively unavailing. He would not be entitled to relief regardless.
1. Kimberlin Cannot Avoid Coram Nobis Requirements by

Relying on an Inapplicable DOJ Policy
First, Kimberlin attempts to shoehorn himself into an inapplicable DOJ
policy. (A. Br. 12–16.)
In 2012, the DOJ “began reviewing cases in which the government had
introduced testimony regarding microscopic hair comparison analysis to
assess whether the government’s forensic expert gave false or misleading
testimony that exceeded the limits of science.” United States v. Ausby, 916
F.3d 1089, 1091–92 (D.C. Cir. 2019); (See R. 37, pp. 14–16). When it had, the
22
DOJ notified defendants impacted and agreed to waive procedural objections.
(R. 37, pp. 14–16.)
But this does not help Kimberlin. Kimberlin, not the government,
introduced the hair comparison evidence. At trial, Kimberlin called Michael
Oliver, an Indiana State Police (ISP) examiner, to testify. (T. 6946–48.)
Oliver, with Kimberlin’s assent, compared Kimberlin’s hair to hair found
near the bombing scene. (T. 6795, 6949–54, 6961.) As to four hairs, Oliver
testified he could not “say positively they are or are not” Kimberlin’s only
that they are “sufficiently similar that, in [his] professional opinion, they are
from the same origin.” (T. 6959.) On cross-examination, Oliver reiterated
that he “cannot state, in fact, that they are Brett Kimberlin’s hairs.” (T.
6969.)
In closing, Kimberlin relied on the hair testimony to claim innocence:
[H]e is not afraid of the truth. Brett Kimberlin wanted the hair
analyzed. The Government didn’t. They didn’t care. Brett wanted
that hair analyzed. Okay, the hair may not have proven much at
all. We know what the hair testimony was, but Brett wasn’t
afraid to look for it.
(T. 7230.)
Thus, Kimberlin either waived and/or invited any error. He “cannot
complain of errors which [he] has committed, invited, [or] induced the court
to make.” Weise v. United States, 724 F.2d 587, 590–91 (7th Cir. 1984) (citing
International Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215, 224
23
(7th Cir. 1981)); see also Naeem v. McKesson Drug Co., 444 F.3d 593, 609 (7th
Cir. 2006) (citing United States v. Fulford, 980 F.2d 1110, 1116 (7th Cir.
1992)); United States v. Jaimes-Jaimes, 406 F.3d 845, 847–49 (7th Cir. 2005)
(citing United States v. Olano, 507 U.S. 725, 733 (1993)).
Nor did the testimony meet the parameters of the DOJ’s review. The
review’s impetus was the FBI’s overstatement of the reliability of hair
comparison. (See R. 37, pp. 14–16.) But the hair comparison at Kimberlin’s
trial was conducted by the ISP. (T. 6946–48.) The ISP’s standards
acknowledged the fallibility of hair comparison, as did Oliver in his
testimony. (See R. 37, p. 9; T. 6959, 6969.) The DOJ review program is
inapplicable to Kimberlin.
Even so, Kimberlin cannot show a miscarriage of justice. As he
admitted at trial, “the hair may not have proven much at all.” (T. 7230.) No
fundamental defect occurred.
Finally, this policy did not give Kimberlin a due process right. (A. Br.
14); see, e.g., United States v. Fattah, 858 F.3d 801, 814 (3d Cir. 2017).
No reason exists to expand coram nobis to encompass this incorrect
claim.
24
2. Kimberlin’s Bare Allegation of “Fraud Upon the Court” Does

Not Override Coram Nobis Restrictions
Next, Kimberlin alleges that “fraud upon the court” at his trial permits
courts to review his coram nobis irrespective of the normal standards. (A. Br.
17–24.)
That is incorrect. True, courts have inherent power to correct
judgments obtained by fraud upon the court. United States v. Williams, 790
F.3d 1059, 1071–73 (10th Cir. 2015) (citing Kenner v. C.I.R., 387 F.2d 689,
691 (7th Cir. 1968)). But that does not obviate the rules of collateral review.
Id. Because, “despite a court’s inherent authority to correct a fraud on the
court, a petitioner cannot circumvent” collateral review rules by “invoke[ing]
the district court’s inherent power.” Id. (citing United States v. Baker, 718
F.3d 1204, 1208 (10th Cir. 2013)).
Even so, the court’s analysis was a de facto merits determination. The
district court summarized the background of Kimberlin’s claim as follows:
Detective Brooke Appleby (“Detective Appleby”) testified at

Kimberlin’s trial regarding his hypnosis of certain witnesses.
Shirley H., a juror, was the wife of Detective Appleby’s ex-wife’s
cousin. Despite being asked during voir dire whether she was
related to or close friends with any law enforcement officers,
Shirley H. did not disclose this relationship. Shirley H. was not
related to Detective Appleby because he was no longer married to
Mr. H.’s cousin. But Detective Appleby maintained a friendship
with Mr. H., and saw Shirley H. on occasion. Detective Appleby
believes that he disclosed the relationship to Patrick Donovan
(“Agent Donovan”), the case agent from the Bureau of Alcohol,
25
Tobacco, Firearms, and Explosives, after the trial but Agent

Donovan says that did not happen.
Detective Appleby had investigated Kimberlin in the mid-1970s

as a suspect in multiple criminal matters. He amassed a three-to-
six inch thick file on Kimberlin and gave it to Agent Donovan.
Agent Donovan recalls reviewing the file in the presence of
Detective Appleby, but not retaining it. It is unknown where the
file is today or whether it still exists. Neither Detective Appleby
nor Agent Donovan recall the file containing exculpatory
evidence.
(R. 95, p. 6 (internal footnote and record citations omitted).) But, as the court
noted, Kimberlin provided no evidence for his claims:
Kimberlin argues that the fact that Agent Donovan had been
investigating him in the years leading up to his arrest in the
bombing case could have been used at trial to show that Detective
Appleby was biased against him. However, Kimberlin has
provided no evidence that the file was exculpatory or that he
requested it in discovery before trial and was wrongly denied it.
***
Kimberlin asserts that because Detective Appleby was aware of

his relationship to juror Shirley H., “[i]t follows that that the two
prosecutors in the case also knew of that relationship”. But
Kimberlin has provided no evidence to support this assertion.
The record reflects that Shirley H. was not related to Detective
Appleby at the time of trial. Whether she or her husband would
be considered close friends of the Detective at that time is
uncertain. Detective Appleby and Agent Donovan have both
provided sworn statements that they did not communicate with
Shirley H. during the trial. Kimberlin alleges that they did meet
during trial, but again he cites nothing in the record to support
this assertion.
(R. 95, pp. 7, 8 (internal record citations omitted).)
26
So, coram nobis rules aside, Kimberlin’s claim failed. The district court
did not reject the fraud claim solely upon coram nobis grounds; instead, it
found Kimberlin’s substantive arguments insubstantial. Even if the coram
nobis standard was inapplicable, Kimberlin’s claim failed.
In reality, his fraud claim is subterfuge for a fishing expedition. In his
view, because he alleged “fraud upon the court,” the only appropriate exercise
of the court’s inherent authority was to grant discovery and hold a hearing.
(See A. Br. 24.) But inherent authority is discretionary. See, e.g., Tucker v.
Williams, 682 F.3d 564, 661 (7th Cir. 2012). And “a petition for a writ of
error coram nobis may not be used to allow a defendant to fish for facts that
may or may not exist and may or may not justify the motion in the first
instance.” Scherer, 673 F.2d at 179–80 (internal quotations omitted).
3. Kimberlin’s Run-of-the-Mill, and Incorrect, Rehaif Claim Is

Not Grounds for Ignoring Coram Nobis Doctrine
Next, Kimberlin says that claims under Rehaif can be considered
without coram nobis restrictions. (A. Br. 24–28.)
That is incorrect. Assuming Rehaif is retroactive to collateral review,
but see In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019), the standard
rules of collateral review apply to it just as any other case, cf. Teague v. Lane,
489 U.S. 288 (1989).
27
And, under any rules, Kimberlin’s claim lacks merit. In Rehaif, the
Supreme Court held that, “in a prosecution under 18 U.S.C. § 922(g) and
§ 924(a)(2), the Government must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant category of
persons barred from possessing a firearm.” 139 S. Ct. at 2200.
Kimberlin was convicted under § 824(i)(1). (Crim. R. 1.) Under § 824,
“[i]t shall be unlawful for any person”:
who is under indictment for, or who has been convicted in any

court of, a crime punishable by imprisonment for a term
exceeding one year . . .
***
to ship or transport any explosive in or affecting interstate or

foreign commerce or to receive or possess any explosive which has
been shipped or transported in or affecting interstate or foreign
commerce.
§ 824(i)(1). Kimberlin’s prior felony was his 1974 perjury conviction under 18
U.S.C. § 1623. 5 (See R. 74, p. 3 & n.1.) At trial, the evidence showed that
Kimberlin retained possession of a water gel explosive and blasting caps after
using them for construction. (see R. 74-2 (United States v. Kimberlin, No. 81-
1993 (7th Cir. Oct. 20, 1982)).)
5 Section 1623 is punishable up to five years imprisonment. Kimberlin was

sentenced to one year imprisonment, with all but 30 days suspended to
probation. (Id.; T. 1798–1802.)
28
Assuming arguendo that Rehaif applies to § 824(i)(1), Kimberlin cannot
show harm. See United States v. Maez, 960 F.3d 949 (7th Cir. 2020); United
States v. Williams, 946 F.3d 968 (7th Cir. 2020). Kimberlin “cannot plausibly
argue that he did not know his conviction had a maximum punishment
exceeding a year.” Williams, 946 F.3d at 973.
In fact, Kimberlin admitted as much. At trial, he called his brother,
Kevin, to testify. (T. 2121–23.) Kevin testified that Kimberlin avoided
handling the explosives because Kimberlin knew he was a prohibited person:
Q: When you were in Michigan or anytime during that summer

did Brett ever mention to you that he had any explosives?
A: No, early – I’m pretty sure before the summer the subject had
come up about needing some explosives in developing the
property, moving tree stumps.
Q: He said that to you?
A: That was a telephone conversation I had with Brett he said he

couldn’t be involved with any of that because he was on probation
so Steve Miller was in charge of that operation.
(Id.) Then, during closing, Kimberlin argued that “Brett knows better than
to do that, Brett Kimberlin is a bright man” and “he knew he couldn’t receive
explosives.” (T. 2279, 2297.)
Kimberlin’s arguments here directly conflict with his trial strategy.
Here, he claims that he “did not even know he had been convicted of a crime
exceeding one year” because he “was told that the sentence was under the
29
Youth Corrections Act” and would be expunged. (A. Br. 26.) But, at trial,
Kimberlin strategically argued that he would not possess explosives because
he knew he was prohibited from doing so. (T. 2121–23, 2279, 2297.)
His trial argument forecloses his opposite argument here. See Jaimes-
Jaimes, 406 F.3d at 847–49; United States v. Cooper, 243 F.3d 411, 416 (7th
Cir. 2001). Regardless, his judgment of conviction does not mention the
Youth Corrections Act (nor has his conviction been expunged). (See R. 74-1.)
Kimberlin’s Rehaif claim fails.
4. Kimberlin’s Attempt to Relitigate a Rejected Argument Does

Not Obviate Coram Nobis Procedure
Kimberlin also complains about the use of hypnosis at his trial. (A. Br.
34–36.) While obviously an anachronistic practice, this Court has already
addressed the issue. Kimberlin, 805 F.2d at 223.
And coram nobis “was and is not a device to relitigate issues fully
ventilated at the time of the conviction.” Keane, 852 F.2d at 203. The
“longstanding rule of federal practice” is that “a person who has raised an
issue, and had it resolved by a federal court, cannot start from scratch on
collateral review and ask the judiciary to proceed as if the first resolution had
not occurred.” Peoples v. United States, 403 F.3d 844, 847 (7th Cir. 2005)
(citing Messinger v. Anderson, 225 U.S. 436, 444 (1912); Roberts v. Cooper, 61
U.S. 467, 481 (1858); Himely v. Rose, 9 U.S. 313 (1809)).
30
The Court should not expand coram nobis to allow Kimberlin to
relitigate a rejected claim.
5. Kimberlin’s Claim Regarding DNA Evidence, Not Raised Here,

Cannot Obviate Coram Nobis Rules
Next, Kimberlin complains about the unavailable DNA evidence. (A.
Br. 36–37.) But that was an issue in his motion under § 3600. (Crim. R. 3,
38.) This issue is not before the Court.
6. Kimberlin’s Belatedly Alleged Impediments are Factors for

Coram Nobis, Not Reasons to Bend the Rules
Finally, Kimberlin asserts that his particular impediments warrant
easing the coram nobis requirements. (A. Br. 37–41.)
But the existence of one or more impediments is already a factor in
coram nobis relief. Wilkozek, 822 F.3d at 368. And the district court
assumed that Kimberlin suffered impediments. (R. 96, p. 4.)
Regardless, Kimberlin did not raise these issues until his motion for
reconsideration. (See R. 95, pp. 8–9); see Isunza, 809 F.3d at 973. And, while
Kimberlin says coram nobis conflicts with wrongful conviction compensation
statutes, see 28 U.S.C. § 1495, those statutes were well established when this
Court outlined its coram nobis standard.
31
CONCLUSION
For the reasons stated above, this Court should affirm the judgment of
the district court.
Respectfully submitted,
By: s/ Brian Reitz

Brian Reitz
32
CERTIFICATE OF COMPLIANCE IN ACCORDANCE WITH

CIRCUIT RULE 32
The foregoing BRIEF OF THE UNITED STATES OF AMERICA
complies with the type volume limitations required under Circuit Rule 32 of
the United States Court of Appeals for the Seventh Circuit in that there are
not more than 14,000 words and that there are 8,274 words typed in
Microsoft Word word-processing this 13th day of September, 2021.
s/ Brian Reitz
Brian Reitz
33
CERTIFICATE OF SERVICE
I hereby certify that on September 13, 2021, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals
for the Seventh Circuit by using the CM/ECF system.
Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.
I further certify that some of the participants in the case are not
CM/ECF users. I have mailed the foregoing document by First-Class Mail,
postage prepaid, and properly addressed to the following non-CM/ECF
participant:
Brett Kimberlin
8100 Beech Tree Road
Bethesda, MD 20817
s/ Brian Reitz
Brian Reitz
Office of the United States Attorney
10 West Market Street, Suite 2100
Indianapolis, Indiana 46204-3048
Telephone: (317) 229-2434
34

United States Court of Appeals For The Seventh Circuit

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States Court of Appeals For The Seventh Circuit

Uploaded by

Copyright:

Available Formats

Case: 21-1691 Document: 16 Filed: 09/13/2021 Pages: 42

UNITED STATES OF AMERICA,

On Appeal from the United States District Court

BRIEF OF THE UNITED STATES

United States Attorney’s Office

JURISDICTIONAL STATEMENT ..................................................................... 1

STATEMENT OF THE ISSUES ......................................................................... 2

STATEMENT OF THE CASE ............................................................................ 3

SUMMARY OF THE ARGUMENT .................................................................. 10

I. The District Court Correctly Denied Kimberlin’s Coram Nobis Petition,

A. Standard of Review ……………………………………………………… 12

B. As the District Court Found, Kimberlin’s Petition Necessarily Failed

C. Additionally, Kimberlin’s Petition Did Not Meet Any of the

II. No Compelling Reason Exists to Overturn Circuit Precedent in Order

A. Standard of Review ……………………………………………………… 21

B. Kimberlin Has Not, and Cannot, Show a Compelling Reason to

Cases Page No.

Allen v. Wright, 468 U.S. 737 (1984) ................................................................. 19

Carlisle v. United States, 517 U.S. 416 (1996) ................................................. 12

Cehovic-Dixneuf v. Wong, 895 F.3d 927 (7th Cir. 2018) .................................. 19

Foont v. United States, 93 F.3d 76 (2d Cir. 1996) ............................................ 18

Himely v. Rose, 9 U.S. 313 (1809) ..................................................................... 30

In re Palacios, 931 F.3d 1314 (11th Cir. 2019) ................................................. 27

International Travelers Cheque Co. v. BankAmerica Corp.,

Kenner v. C.I.R., 387 F.2d 689 (7th Cir. 1968) ................................................. 25

Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. 1994) ............................................. 5

Kimberlin v. U.S. Parole Comm'n, 01-1212………..………………………………6

Kimberlin v. White, 7 F.3d 527 (6th Cir. 1993) ...................................... 1, 3, 4, 5

Kimberlin v. White, 7 F.3d 528 (6th Cir. 1993)……………………………… ……3

Lexmark Int'l, Inc. v. Static Control Components, Inc. 572 (2014)…………...19

Members of City Council of City of Los Angeles v. Taxpayers for Vincent,

Messinger v. Anderson, 225 U.S. 436 (1912) .................................................... 30

Nordahl v. United States, 425 F. App’x 35 (2d Cir. 2011) ............................... 18

Nunez-Moron v. Holder, 702 F.3d 353 (7th Cir. 2012)..................................... 21

Roberts v. Cooper, 61 U.S. 467 (1858) ............................................................... 30

Teague v. Lane, 489 U.S. 288 (1989) ................................................................. 27

Tucker v. Williams, 682 F.3d 564 (7th Cir. 2012) ............................................ 27

United States v. Addonizio, 442 U.S. 178 (1979) ............................................. 20

United States v. Alvarez, 567 U.S. 709 (2012) ........................................ 7,15, 16

United States v. Craig, 907 F.2d 653 (7th Cir.).........................................passim

United States v. Denedo, 556 U.S. 904 (2009) .................................................. 12

United States v. Lepowitch, 318 U.S. 702 (1943) ............................................... 9

United States v. Mayer, 235 U.S. 55 (1914) ...................................................... 17

United States v. Olano, 507 U.S. 725 (1993) .................................................... 24

United States v. Smith, 331 U.S. 469 (1947) .................................................... 16

18 U.S.C. § 701 ................................................................................................. 1, 4

18 U.S.C. § 704 ................................................................................................... 15

18 U.S.C. § 713 ................................................................................................. 1, 4

18 U.S.C. § 713(a) ……… …………………………………………………………… 4

18 U.S.C. § 842 ..................................................................................................... 1

18 U.S.C. § 842(i)(1) ................................................................................. 4, 28, 29

18 U.S.C. § 844 ..................................................................................................... 1

18 U.S.C. § 844(f) ................................................................................................. 4

18 U.S.C. § 844(i) ................................................................................................. 4

18 U.S.C. § 912 ............................................................................................passim

18 U.S.C. § 922 ..................................................................................................... 1

18 U.S.C. § 922(g) .............................................................................................. 28

18 U.S.C. § 922(g)(1) ............................................................................................ 4

18 U.S.C. § 924(a)(2) .......................................................................................... 28

18 U.S.C. § 1623 ................................................................................................. 28

18 U.S.C. § 3231 ................................................................................................... 1

18 U.S.C. § 3600 ............................................................................................. 6, 31

26 U.S.C. § 5861 .................................................................................................. 1