Brett Kimberlin (Speedway Bomber) Loses Attempt to Vacate Long-Past Convictions, Including First Amendment Challenge to Impersonating-Federal-Official Conviction

Two years ago, I posted about this district court case decision. Here’s the Seventh Circuit’s decision from yesterday. Kimberlin v. U.S.:

Brett Kimberlin applied for a writ for rehabilitation almost 20 years after he had served his sentence for felonies relating to bombings. coram nobisIn his petition, he sought to have certain convictions overturned in order to be granted relief for civil disabilities. His petition was denied by the district court. The court correctly ruled that Kimberlin cannot challenge other felony convictions, even though some were reversed. His remaining felonies mean that his civil disabilities, which he has protested against, will not be overturned. The equitable relief coram nobisWe are unable to confirm that it is not possible.

In 1979, Kimberlin was arrested after he tried to procure counterfeit government documents—including a presidential seal, military driver’s license forms, and military license plates. Eight bombings took place in Speedway (Indiana) and Kimberlin was later linked by federal officials. Kimberlin was later found guilty of several felonies. He also impersonated a federal official, wearing a uniform from the Department of Defense. Kimberlin was convicted and given a sentence by collateral review and direct appeal. Kimberlin was released on parole in 1994. However, his parole was suspended in 1997 after he submitted a fraudulent mortgage loan request and failed to pay the civil judgment due to bombing victims. In 2001, he was released from prison.

Kimberlin filed for a writ to be granted almost twenty years after his release. coram nobis.If the defendant has been released from custody, this equitable remedy could be used. § 2255 unavailable) yet collateral relief is necessary to eradicate unjustified civil disabilities. The district court should vacate the convictions for him using an insignia of Defense and the Presidential seal to impersonate a federal official and participating in the bombings. Kimberlin says that because of the convictions, Kimberlin is in danger of civil disabilities. Kimberlin cannot get grants, be eligible for loans or serve on a jury.

Kimberlin was denied the petition by the district court. It noted Kimberlin’s ability to obtain a permit. coram nobisKimberlin couldn’t prevail against his convictions for felony offenses giving rise to the civil disabilities. The court first noted that United States v. Bonin (7th Cir. 2019), foreclosed Kimberlin’s argument that the First Amendment conflicts with his convictions under § 912 for impersonating a federal official. Kimberlin was also convicted of marijuana possession and perjury, which he did not challenge in the petition. They were enough to keep his civil disabilities.

On appeal, Kimberlin maintains that his § 912 conviction is invalid. Kimberlin relies upon United States v. Alvarez (2012). The Supreme Court decided that the First Amendment’s free speech protection invalidated an amendment of the Stolen Valor Act, 2005 which prohibited “falsely representing the receipt” of medals and decorations military. This was a decade ago. Kimberlin asserts that Alvarez undermines his § 912 conviction because wearing a uniform of the Department of Defense could involve protected speech like “a protest, theatrical performance,” or a “Halloween party.” Kimberlin adds that, because he used the uniform for “commercial” transactions, he did not meet § 912’s requirement that he “act as such” officer that he impersonated.

These arguments overlook the restraints of the writ. A writ is a declaration of finality that upends the status quo. coram nobisNot only must there be a fundamental error that leads to a conviction or civil disabilities, but it is also necessary for the defendant not to seek relief during custody. We can focus on the § 912 conviction because, as the district court noted, a coram nobis challenge that might eliminate some felony convictions but leaves intact others that yield the same civil disabilities does not warrant relief…. “Indeed, even one count stating an offense would be the end of things, for a single felony conviction supports any civil disabilities … [the plaintiff]Kimberlin may be forced to continue.” … For three reasons, the district court rightly denied Kimberlin’s petition.

First, nothing prevented Kimberlin from raising on direct appeal or in his prior petition under § 2255 the legal arguments that the defendants advanced in AlvarezThe First Amendment and WadeKimberlin exhorts you to “act as such” Rather, he pursued his one opportunity that Congress allowed him under § 2255 to challenge his § 912 conviction without mentioning these arguments. “[I]”It’s completely wrong for the judiciary that the common law be invoked by the judiciary.” coram nobis“to overcome limitations enacted Congress.” Thus, Kimberlin cannot use these arguments in this petition to challenge the validity the § 912 conviction.

Second, in any event, Kimberlin’s arguments about errors in his § 912 conviction are meritless. In fact, the court found that there were insufficient evidence to support Kimberlin’s SS 912 conviction. BoninWe rejected his First Amendment argument. We noticed that the plurality view in Alvarez distinguished § 912 from the Stolen Valor Act and ruled that § 912’s “act as such” element is a constitutional, narrowly drawn ban on false speech (impersonation) that protects compelling interests in government processes, reputation, and service. WadeIt does nothing to help him. We explained there that § 912 validly criminalizes “overt action taken to cause the victim to follow a course of action he would not otherwise have pursued.” Kimberlin’s attempts to impersonate others violated this statute.

Kimberlin does not contest his convictions for perjury and marijuana possession. And he does not contest the district court’s conclusion that his ongoing civil disabilities will remain intact by virtue of these unchallenged convictions (as well as by virtue of the intact § 912 conviction). This is why he can’t get the relief he wants in his case. coram nobis petition….