BK V Us Doc 37

Case 1:18-cv-01141-TWP-MPB Document 37 Filed 07/02/19 Page 1 of 61 PageID #: 226
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRETT C. KIMBERLIN, )
Petitioner, )
)
v. ) Cause No. 1:18-cv-01141-TWP-MPB
) [1:79-cr-00007-TWP-MJD-01]
UNITED STATES OF AMERICA, )
Respondent. )
RESPONSE IN OPPOSITION TO PETITION

FOR WRIT ERROR CORAM NOBIS
Respectfully submitted,
JOSH J. MINKLER
United States Attorney
By: s/ Brian Reitz

Brian Reitz
Assistant United States Attorney
Office of the United States Attorney
10 W. Market St., Suite 2100
Indianapolis, Indiana 46204-3048
TABLE OF CONTENTS
Page No.
INTRODUCTION ................................................................................................ 1
BACKGROUND ................................................................................................... 2
STATEMENT OF THE ISSUE ......................................................................... 17
DISCUSSION ..................................................................................................... 17
I. Kimberlin’s Coram Nobis Is Barred by Laches ...................................... 19
II. First Coram Nobis Requirement: Kimberlin Has Not, and Cannot,
Show a Lingering Disability .................................................................... 20
III. Second Coram Nobis Requirement: Kimberlin Does Not Have a Sound
Reason for Failing to Seek Relief Sooner ............................................... 23
A. Kimberlin’s Hair Analysis Claim Could Have Been Raised Four

Years Ago ........................................................................................... 24
B. Kimberlin’s Claim Regarding Appleby Could Have Been Raised

At Any Time Before Now................................................................... 25
C. Kimberlin’s Juror Bias Claim Also Could Have Been Raised

Any Time Before Now........................................................................ 26
D. Kimberlin’s Ineffective Assistance of Counsel Claim Could

Have Been Raised Nearly 40 Years Ago .......................................... 26
E. Kimberlin’s Hypnosis Claim Could Have Been—and Was—

Raised 33 Years Ago .......................................................................... 26
F. Kimberlin’s First Amendment Claim Could Have Been Raised

Seven, or at Least Three, Years Ago ................................................ 26
IV. Third Coram Nobis Requirement: Kimberlin Was Fairly and Rightly
Convicted and Cannot Show a Fundamental Defect ............................. 27
i
A. Kimberlin—Not the Government—Introduced the Hair Analysis

Testimony He Now Complains About; In All Events, He Cannot
Show a Napue Violation .................................................................... 27
1. Kimberlin Invited, and/or Waived, Any Objection to the

Hair Analysis Testimony He Himself Introduced................... 28
2. Kimberlin’s Case Does Not Fit the Criteria for the

FBI/DOJ’s Microscopic Hair Comparison Review................... 29
3. In All Events, Kimberlin Cannot Show a Napue Violation .... 30
B. Kimberlin Was Not Entitled to Appleby’s File, Which Was Not

Exculpatory, and Not Grounds for Coram Nobis ............................. 33
C. Kimberlin Cannot Show That the Juror Was Impliedly Biased

or That She Committed Misconduct Warranting Coram Nobis
Relief................................................................................................... 37
1. The Juror In Question Was Too Remotely Connected to the

Case to Be Impliedly Biased .................................................... 37
2. Nor Did the Juror Herself Commit Misconduct ...................... 40
D. Kimberlin’s Attorney Was Not Ineffective ....................................... 43
1. Kimberlin’s Attorney Was Not Deficient ................................. 44
2. Regardless, Kimberlin Suffered No Prejudice ........................ 45
E. Kimberlin’s Claims Regarding the Hypnotized Witnesses Have

Already Been Rejected ...................................................................... 46
F. Kimberlin’s § 701 and § 912 Convictions Do Not Violate the

First Amendment .............................................................................. 46
CONCLUSION ................................................................................................... 49
ii
TABLE OF AUTHORITIES
Cases Page No.
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)....................................................... 47
Allen v. Brown Clinic, P.L.L.P., 531 F.3d 568 (8th Cir. 2008) ................................... 39
Allen v. Wright, 468 U.S. 737, 104 (1984) ................................................................... 22
Brady v. Maryland, 373 U.S. 83 (1963) .............................................................. passim
Brecht v. Abrahamson, 507 U.S. 619 (1993) ....................................................... passim
Brogdon v. Butler, 838 F.2d 776 (5th Cir. 1988) ........................................................ 42
Carlisle v. United States, 517 U.S. 416 (1996)............................................................ 18
Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011) ............................................. 17
Commonwealth v. Clark, 528 S.W.3d 342 (Ky. 2017) ................................................ 32
Com. v. Perrot, 2016 WL 380123

(Mass. Superior Ct., Hampden Cty., Jan. 26, 2016) ............................................... 32
Conaway v. Polk, 453 F.3d 567, n.22 (4th Cir. 2006) ................................................. 38
Cooper v. United States, 199 F.3d 898 (7th Cir. 1999) ............................................... 46
Department of Justice and FBI Joint Statement on Microscopic Hair Analysis,

2015 WL 1775844 (April 19, 2015) .................................................................... 15, 16
Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) .................................................... 38, 39
Foont v. United States, 93 F.3d 76 (2d Cir. 1996) ................................................ 17, 24
Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007)........................................... 42
Giglio v. United States, 405 U.S. 150 (1972) ........................................................ 36, 37
Himely v. Rose, 9 U.S. 313 (1809) ............................................................................... 46
Horstman v. State, 530 So.2d 368 (Fla. Dist. Ct. App. 1988) ..................................... 32
iii
Howard v. United States, 962 F.2d 651 (7th Cir. 1992) ....................................... 18, 21
Hunley v. Godinez, 975 F.2d 316 (7th Cir. 1992).................................................. 37, 39
International Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215

(7th Cir. 1981) .......................................................................................................... 28
Irvin v. Dowd, 366 U.S. 717 (1961) ............................................................................. 41
Johnston v. Mizell, 912 F.2d 172 (7th Cir. 1990)........................................................ 45
Jones v. United States, 202 A.3d 1154 (D.C. 2019) ................................................... 32
Kimberlin v. Brewer, 825 F.2d 1157 (7th Cir. 1987) .................................................. 13
Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. 1994) ..................................................... 12
Kimberlin v. Dewalt, 12 F. Supp. 2d 487 (D. Md.)...................................................... 13
Kimberlin v. Frey, No. GJH-13-3059, 2017 WL 3141909

(D. Md. July 21, 2017)...................................................................................... passim
Kimberlin v. Frye, 714 F. App’x 291 (4th Cir. 2018) .................................................. 13
Kimberlin v. McConnell, No. GJH-16-1211, 2016 WL 8667769

(D. Md. June 3, 2016) ............................................................................................... 13
Kimberlin v. Quinlan, 251 F. Supp. 2d 47 (D.D.C. 2003)........................................... 13
Kimberlin v. McConnell, 671 F. App’x 128 (4th Cir. 2016) ........................................ 13
Kimberlin v. Smith, No. 84 C, 5924, 1985 WL 2011 (N.D. Ill. July 9, 1985) ............. 13
Kimberlin v. White, 7 F.3d 527 (6th Cir. 1993)................................................... passim
Kimberlin v. White, 798 F. Supp. 472 (W.D. Tenn. 1992) ................................ 2, 13, 24
Kotteakos v. United States, 328 U.S. 750 (1946)......................................................... 33
Lilly v. Gillmore, 988 F.2d 783 (7th Cir. 1993) ........................................................... 45
Long v. Pfister, 874 F.3d 544 (7th Cir. 2017) ........................................................ 31, 32
Long v. State, 689 So.2d 1055 (Fla. 1997) ................................................................... 32
iv
Mastrogiacomo v. United States, No. 90–cr–565 (KTD), 2001 WL 799741

(S.D.N.Y. July 16, 2001) .......................................................................................... 24
Matter of Stanton, 492 N.E.2d 1056 (Ind. 1986)......................................................... 45
Matter of Stanton, 504 N.E.2d 1 (Ind. 1987)............................................................... 45
McCleese v. United States, 75 F.3d 1174 (7th Cir. 1996) ........................................... 23
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984).................... 40, 41
Mercado v. United States, 104 F. Supp. 2d 1059 (E.D. Wis. 2000) ...................... 23, 26
Messinger v. Anderson, 225 U.S. 436 (1912) ............................................................... 46
Moskowitz v. United States, 64 F. Supp. 3d 574 (2014) ............................................. 17
Naeem v. McKesson Drug Co., 444 F.3d 593 (7th Cir. 2006) ..................................... 28
Napue v. Illinois, 360 U.S. 264 (1959) ........................................................................ 30
Nordahl v. United States, 425 F. App’x 35 (2d Cir. 2011) .................................... 24, 41
Norris v. United States, 687 F.2d 899 (7th Cir. 1982) ................................................ 19
Pitts v. State, 501 S.W.3d 803 (Ark. 2016) .................................................................. 32
Peoples v. United States, 403 F.3d 844 (7th Cir. 2005) .................................. 43, 46, 49
Pfeil v. Rogers, 757 F.2d 850 (7th Cir. 1985) .............................................................. 45
Pruitt v. City of Chicago, 472 F.3d 925 (7th Cir. 2006) .............................................. 20
Pruitt v. McAdory, 337 F.3d 921 (7th Cir. 2003) ........................................................ 34
Roberts v. Cooper, 61 U.S. 467 (1858) ......................................................................... 46
Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir. 1995) .............................................. 33
Schnusenberg v. University of Chicago, 1997 WL 30991, n.1

(N.D. Ill. Jan. 23, 1997) ........................................................................................... 33
Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019) ............................................................ 34
v
Smith v. Phillips, 455 U.S. 209 ....................................................................... 37, 38, 39
State v. Armstrong, 700 N.W.2d 98 (Wis. 2005) ......................................................... 32
Stenhouse v. Hobbs, 631 F.3d 888 (8th Cir. 2011) ...................................................... 42
Strickland v. Washington, 466 U.S. 668 (1984) .................................................... 43, 44
United States v. Addonizio, 442 U.S. 178 (1979) ........................................................ 27
United States v. Alvarez, 567 U.S. 709 (2012) ............................................................ 26
United States v. Are, 590 F.3d 499 (7th Cir. 2009) ..................................................... 30
United States v. Ausby, 916 F.3d 1089 (D.C. Cir. 2019)..................................... passim
United States v. Bagley, 473 U.S. 667 (1985) ....................................................... 34, 38
United States v. Balistrieri, 423 F. Supp. 793 (S.D. Ill. 1976) ................................... 36
United States v. Balistrieri, 606 F.2d 216 (7th Cir. 1979) ......................................... 36
United States v. Beasley, 48 F.3d 262 (7th Cir. 1995) ................................................ 42
United States v. Bender, 539 F.3d 449 (7th Cir. 2008) ............................................... 36
United States v. Bonansinga, 855 F.2d 476 (7th Cir. 1988) ....................................... 27
United States v. Brazelton, 557 F.3d 750 (7th Cir. 2009)..................................... 38, 39
United States v. Brodnicki, 516 F.3d 570 (7th Cir. 2008) .......................................... 41
United States v. Bush, 888 F.2d 1145 (7th Cir. 1989) .................................... 18, 21, 23
United States v. Coleman, 914 F.3d 508 (7th Cir. 2019) ...................................... 30, 31
United States v. Correa-DeJesus, 708 F.2d 1283 (7th Cir. 1983)......................... 19, 20
United States v. Cosby, 924 F.3d 329 (7th Cir. 2019) ........................................... 30, 31
United States v. Craig, 907 F.2d 653 (7th Cir.) .............................................. 18, 21, 48
United States v. Darnell, 716 F.2d 479 (7th Cir. 1983) ...................................... passim
vi
United States v. Delatorre, 572 F. Supp. 2d 967 (N.D. Ill. 2008) ............................... 26
United States v. Delhorno, 915 F.3d 449 (7th Cir. 2019) ..................................... 23, 28
United States v. Dellinger, 657 F.2d 140 (7th Cir. 1981) ............................... 18, 21, 27
United States v. Denedo, 556 U.S. 904 (2009) ............................................................ 17
United States v. Dominguez Benitez, 542 U.S. 74 (2004) ........................................... 33
United States v. Driver, 798 F.2d 248 (7th Cir. 1986) ................................................ 35
United States v. Flick, 2016 WL 80669 (W.D. Penn. Jan. 7, 2016)............................ 32
United States v. Fulford, 980 F.2d 1110 (7th Cir. 1992) ............................................ 28
United States v. George, 676 F.3d 249 (1st Cir. 2012) ............................................ 1, 17
United States v. Ghilarducci, 480 F.3d 542 (7th Cir. 2007) ................................. 40, 41
United States v. Hedman, et al., 655 F.2d 813 (7th Cir. 1981) .................................. 24
United States v. Holt, 486 F.3d 997 (7th Cir. 2007) ................................................... 30
United States v. Jacques, 345 F.3d 960 (7th Cir. 2003) ............................................. 28
United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. 2005) ............................ 28, 41
United States v. Jumah, 599 F.3d 799 (7th Cir. 2010) ......................................... 35, 36
United States v. Keane, 852 F.2d 199 (7th Cir. 1988) ........................................ passim
United States v. Kimberlin, 673 F.2d 1335 (7th Cir. 1981) ........................................ 12
United States v. Kimberlin, 675 F.2d 866 (7th Cir. 1982) .................................... 11, 12
United States v. Kimberlin, 692 F.2d 760 (7th Cir. 1982) .......................................... 12
United States v. Kimberlin, 776 F.2d 1344 (7th Cir. 1985) ............................ 12, 19, 25
United States v. Kimberlin, 781 F.2d 1247 (7th Cir. 1985) ................................ passim
United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986) .................................. passim
vii
United States v. Kimberlin, 898 F.2d 1262 (7th Cir. 1990) ........................ 1, 12, 13, 24
United States v. Maldonado-Rivera, 922 F.2d 934 (2d Cir. 1990) ............................. 42
United States v. Mandel, 862 F.2d 1067 (4th Cir. 1988) ...................................... 17, 18
United States v. Marchesseault, 692 F. App’x 601 (11th Cir. 2017) .......................... 28
United States v. Martin, 749 F.2d 1514 (11th Cir. 1985) ........................................... 42
United States v. Medina, 430 F.3d 869 (7th Cir. 2005) .............................................. 40
United States v. Mills, 221 F.3d 1201 (11th Cir. 2000) ........................................ 28, 40
United States v. Mitchell, 690 F.3d 137 (3d Cir. 2012) .............................................. 33
United States v. Moore, 166 F.2d 102 (7th Cir. 1948) ................................................ 19
United States v. Morgan, 346 U.S. 502 (1954) ...................................................... 18, 19
United States v. Muskovsky, 863 F.2d 1319 (7th Cir. 1988) ...................................... 28
United States v. Nazon, 936 F. Supp. 563 (N.D. Ind. Aug. 7, 1996) .......................... 23
United States v. Nururdin, 8 F.3d 1187 (7th Cir. 1993) ...................................... 41, 42
United States v. Olano, 507 U.S. 725 (1993) .............................................................. 18
United States v. Osser, 864 F.2d 1056 (3d Cir. 1988) ................................................. 17
United States v. Phillips, 854 F.2d 273 (7th Cir. 1988) ............................................. 35
United States v. Polichemi, 219 F.3d 698 (7th Cir. 2000) .......................................... 38
United States v. Redd, 2007 WL 1724900 (N.D. Ind. June 11, 2007) ........................ 43
United States v. Rhodes, 177 F.3d 963 (11th Cir. 1999) ............................................ 42
United States v. Scherer, 673 F.2d 176 (7th Cir. 1982) ...................................... passim
United States v. Sloan, 505 F.3d 685 (7th Cir. 2007) ......................................... passim
United States v. Smith, 241 F.3d 546 (7th Cir. 2001) ................................................ 44
viii
United States v. Smith, 331 U.S. 469 (1947) .............................................................. 18
United States v. Smith, 816 F.3d 479 (7th Cir. 2016) ................................................ 33
United States v. Spellissy, 438 F. App’x 780 (11th Cir. 2011).................................... 33
United States v. Stewart, 388 F.3d 1079 (7th Cir. 2004)............................................ 44
United States v. Swisher, 811 F.3d 299 (9th Cir. 2016) ............................................. 29
United States v. Taylor, 509 F.3d 839 (7th Cir. 2007)................................................ 42
United States v. Vonn, 535 U.S. 55 (2002) .................................................................. 33
United States v. Warner, 498 F.3d 666 (7th Cir. 2007) ........................................ 37, 39
United States v. Wilkozek, 822 F.3d 364 (7th Cir. 2016) ................................ 28, 23, 28
United States v. Wood, 299 U.S. 123 (1936) ............................................................... 38
United States v. York, 933 F.2d 1343 (7th Cir. 1991) ................................................. 42
Valenzuela v. United States, 261 F.3d 694 (7th Cir. 2001) ........................................ 44
Weise v. United States, 724 F.2d 587 (7th Cir. 1984) ................................................. 28
Wiggins v. Smith, 539 U.S. 510 (2003) ....................................................................... 44
Withrow v. Williams, 507 U.S. 680 (1993) .................................................................. 48
Wyatt v. United States, 574 F.3d 455 (7th Cir. 2009) ................................................. 45
Zelazny v. Long, 853 F.2d 540 (7th Cir. 1988) ............................................................ 19
Statutes
18 U.S.C. § 842(i)(1) ..................................................................................................... 11
18 U.S.C. § 844(f) ......................................................................................................... 11
18 U.S.C. § 912 ............................................................................................................. 11
18 U.S.C. § 3600 ........................................................................................................... 16
ix
21 U.S.C. § 2241 ........................................................................................................... 13
26 U.S.C. § 5861(d) ...................................................................................................... 11
28 U.S.C. § 1651(a) ...................................................................................................... 17
28 U.S.C. § 1746 ........................................................................................................... 45
28 U.S.C. § 2255 ........................................................................................................... 12
Rules
Fed. R. Evid. 801(c) ...................................................................................................... 35
Other
Find an Inmate, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last

visited June 12, 2019) .......................................................................................... 1, 14
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/BG1
64276919.PDF (last visited June 18, 2019) (“Bizarre plots”). .................................... 2
Director Comey Letter to Additional Governors on State Reviews,

https://www.fbi.gov/file-repository/second-governor-letter-061016.pdf/view (last
visited June 12, 2009) ............................................................................................. 14
FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of

Cases in Ongoing Review, https://www.fbi.gov/news/pressrel/press-releases/fbi-
testimony-on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-
cases-in-ongoing-review (last visited June 12, 2009) .............................................. 14
FBI/DOJ Microscopic Hair Comparison Analysis Review,

https://www.fbi.gov/services/laboratory/scientific-analysis/fbidoj-microscopic-hair-
comparison-analysis-review (last visited June 12, 2019)) ....................................... 14
x
INTRODUCTION
Kimberlin was indicted 40 years ago. United States v. Kimberlin, 781 F.2d
1247, 1248 (7th Cir. 1985) (Kimberlin III). He was convicted of 33 counts, nearly 40
years ago. Id. at 1248–49. He was released from prison 18 years ago. Find an
Inmate, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited
June 12, 2019). This is, in other words, an ancient case.
And a case that Kimberlin has received an abundance of process. He had
three trials, and at least four direct appeals, five collateral attacks, and four habeas
petitions. See infra pp. 12-13. Put differently, “Kimberlin is no stranger to
appellate proceedings.” United States v. Kimberlin, 898 F.2d 1262, 1264 (7th Cir.
1990) (Kimberlin VII). As of 1990, he had “averaged two appeals per year in [the
Seventh Circuit] over the last decade.” Id.
Now he is back. Decades after his convictions, Kimberlin returns for another
inevitable round of litigation. Dispersed over at least 10 filings, he launches a
fusillade of claims—complete with typical conspiratorial bent—that range from
merely incorrect to actually misleading. He does so under the writ of coram nobis—
“[the] criminal-law equivalent” of a “Hail Mary pass.” United States v. George, 676
F.3d 249, 251 (1st Cir. 2012). None of his passes finds a target.
This Court should deny Kimberlin’s petition.
1
BACKGROUND
Brett Kimberlin: “The Speedway Bomber”
Kimberlin was convicted as the so-called “Speedway Bomber.”1 Kimberlin v.
White, 7 F.3d 527, 528 (6th Cir. 1993) (Kimberlin VII). As the Speedway Bomber,
he “terrorized the city of Speedway, Indiana, by detonating a series of explosives in
early September 1978.” Id.
His crimes “were extremely serious.” Kimberlin v. White, 798 F. Supp. 472,
474 (W.D. Tenn. 1992). They “involved substantial risk of devastating personal
injury to innocent bystanders by the detonation of bombs in areas open to the
public.” Id.
Tragically, that risk came to fruition. Id. 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. Kimberlin VII, 7 F.3d at 528. Carl Delong was leaving the 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, chest, and arm. Id. at 528–29. In February 1983, Delong
1See 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/BG
164276919.PDF (last visited June 18, 2019) (“Bizarre plots”).
2
committed suicide. Id. at 529.
Kimberlin was charged in a 34-count indictment. Those charges were as
follows: possession and manufacture of destructive devices (Counts 1–16);
maliciously causing damage by means of explosives (Counts 17–22); felon in
possession of explosives (Counts 23–24); illegally transporting ammunition (Count
25); unlawful possession of an official insignia of the Department of Defense (DOD)
and a Presidential seal (Counts 26–30); and falsely impersonating a DOD official
(Counts 31–34). Kimberlin III, 781 F.2d at 1248; United States v. Kimberlin, 805
F.2d 210, 215–16 (7th Cir. 1986) (Kimberlin IV).
The Bombing Trial (Counts 1–22): “Strong” Evidence
Kimberlin’s trial for the Speedway bombings occurred from August 17 to
October 15, 1981. Kimberlin IV, 805 F.2d at 216. The government marshalled
“strong, albeit circumstantial, support for the guilty verdict.”2 Id. at 221.
1. Voir Dire
The court and parties conducted an extensive voir dire. One juror, Shirley
H., is relevant here. Shirley H. was the wife of the cousin of the ex-wife of Indiana
State Police (ISP) Detective Brooke Appleby, who was not actively involved in the
Kimberlin investigation, but testified at trial about placing certain witnesses under
2Kimberlin quotes the concurrence as saying this was a “very close case.” (Dkt. 22,
purporting to cite Kimberlin V, 805 F.2d at 254–55 (Cudahy, J., concurring).) But
that is not true. That quote never appears in Kimberlin V, nor does Judge Cudahy
question the evidence of Kimberlin’s guilt. Kimberlin V, 805 F.2d at 254–55
(Cudahy, J., concurring). Instead, Judge Cudahy found that the admissibility of
hypnotized witnesses was an “exceedingly close and difficult” question. Id.
3
hypnosis. (A 14-18.) Appleby does not recall whether that relationship was known
to the prosecution. (Id.) He believes that he disclosed the relationship to Patrick
Donovan, the case agent from the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), but Agent Donovan says that did not happen. (A 2.)
Shirley H. was personally questioned about her relationship to the case:
Q. Has any member of your immediate family lever been employed

by a law enforcement agency?
A. No.
Q. Of any kind?
A. No.
Q. Have you or has any member of your family ever been connected
in any way with the United States Attorney’s Office?
A. No, not that I am aware of.
Q. Or any prosecuting attorney’s office?
A. No.
(T. 99.)
Kimberlin then conducted voir dire of Shirley H. He asked her about her
knowledge of firearms. (T. 186–87.) He then questioned the venire en masse,
requesting that prospective jurors raise their hand if they would be more likely to
believe law enforcement officers, or had a “close family friend” who was an officer.
(T. 207–08.) Shirley H. apparently did not raise her hand. (Id.)
Later, the Kimberlin proposed the following question to the entire venire:
Are any of you close friends with any law enforcement officers?
Not necessarily a family member. I think the Court has already asked
you about that. But anybody who has a close family friend who is a
law enforcement officer?
(T. 208.) The record is unclear—no responses are noted, either way—but it appears
that Shirley H. did not respond affirmatively to that question. (Id.)
4
Later, Shirley H. affirmed her ability to be an impartial juror:
Q. With what you know [about Kimberlin], do you believe it in any

way inhibits your ability to sit here and be a fair and impartial
juror and base your opinion on what you heard?
A. I don’t think so. I think I can be not prejudiced. I think I can be
fair.
***
Q. Do you believe that conscientiously, in good faith, you can sit
there as a juror and fairly and impartially consider the evidence
from this witness stand and make a just determination in this
case? Would you feel comfortable in your own conscience, with
your attitudes the way they are now, in sitting in judgment of
Brett Kimberlin?
A. Yes, the way I feel now I feel that I could do it.
***
Q. The judge gives you the law. If he gives you the law and you
disagree with it, would you nonetheless follow it?
A. Sure.
(T. 252, 256, 259, 260.) Further, the court asked if the venire could be impartial
and follow the law, and Shirley H. did not indicate otherwise. (T. 209–10.)
Shirley H. also expressed some concern about the length of trial—suggesting
that if it went too long she “might be in trouble of losing my job.” (T. 255.) She also
appeared to harbor at least some skepticism of hypnosis. (T. 254.)
Shirley H. was seated as a petit juror. (T. 1068–70.) At close of trial, the
judge complimented the jury: “I don’t believe that I have ever observed a jury that
took its responsibility any more seriously and any more objectively.” (T. 7481.)
2. “Strong” Evidence of Kimberlin’s Guilt
The Seventh Circuit recited the “strong” evidence of Kimberlin’s guilt as follows:
There were eight explosions: Nos. 1, 2 and 3 occurred September 1,

1978 at 9:49 PM, 10:05 PM, and 10:35 PM; No. 4 took place at 1:50
AM, September 2. Thus four occurred during the night of September 1–
2. Number 5 occurred at 12:15 AM, September 3; No. 6 at 9:50 PM,
5
September 3; No. 7 at 9:45 PM, September 5; and No. 8 at 8:15 PM,

September 6.
Examination of the explosion sites revealed components of the

explosive devices. DuPont Tovex 200 high explosive was identified at
the sites of Nos. 1, 2, 4, 6, 7 and 8. At No. 3 there was identified a high
explosive of the water gel type which could be Tovex. Leg wires from
DuPont electrical blasting caps were found at Nos. 1, 3, 4, 5, 6, 7 and 8.
Defendant had been engaged in construction on his land in rural

Jackson County, Indiana, and engaged an architect for that work.
Certain blasting was decided upon. On May 14, 1975, defendant was
present when the architect purchased 86 sticks of Tovex 200 and 50
blasting caps with leg wires. Between 13 and 22 sticks of Tovex were
used on defendant's project. Confer, one of defendant’s business
associates, testified that in July, August, or September, 1975
defendant asked him to help unload a truck. In the process defendant
warned Confer about two cardboard boxes of explosives in the trunk.
He said these were some the architect had purchased for him and that
the caps were in the cab. There was testimony by persons who worked
on defendant’s land that they observed no use of explosives on the
property after the initial blasting.
There was testimony that monomethylamine nitrate (MMAN) is found

in DuPont Tovex and Tovan, and those are the only products
containing it. Traces of MMAN were found in swabbings taken from
defendant’s Mercedes automobile in December, 1978 and from a blue
over white Chevrolet Impala searched September 21 and used by
defendant from about September 13 to 20. Although it is possible for
MMAN to exist in natural materials, there was expert testimony that
its concentration would be too low for detection.
Patricia Strait is the sister of Sandra Barton, defendant’s friend and

one of his alibi witnesses. She lives a short distance from Austin,
Texas. On March 10, 1979, Patricia was working in her yard and
pulled out from under a tree three DuPont blasting caps and 14 sticks
of Tovex 200. There was evidence that defendant had been in the
general vicinity during the period from September to December, 1978.
Although there had been an attempt to obliterate the date shift code on
that Tovex, ATF analysts testified that it was the same as that on the
Tovex purchased May 14, 1975.
Examination of the explosion sites also revealed a Mark Time timer at

Nos. 6 and 8, and timer parts consistent with 60 minute Mark Time or
6
Micronta timers at Nos. 1, 2, 3, 4, 5 and 7. The Mark Time and

Micronta are made by the same company and apparently differ only in
name. Graham Electronics, a distributor of Mark Time timers, had
three stores in Marion County where Speedway (as well as
Indianapolis) is located. Records showed sales of 16 timers from May 3,
1978 through September 9, 1978. They showed a sale of six on August
23, which a customer had ordered August 21; three on September 2,
and five on September 5.
Four Mark Time timers, altered so as to start an electric device rather

than turn one off, were found in the trunk of the Impala on September
21, 1978, and two timers were found by Patricia Strait in her yard
March 10, 1979.
Lead shot was found at site Nos. 5, 6 and 7. Two 25–pound bags of lead
shot and three boxes of .445 caliber lead balls were found in the Impala
September 21.
Batteries were found, as follows: A “battery” at No. 1; “Ray–O–Vac

battery” No. 3; “Sportsman battery” No. 4; “battery” No. 5; “Ray–O–Vac
6 volt battery” No. 6; “Ray–O–Vac battery” No. 7; “Ray–O–Vac
Sportsman battery” No. 8. A 6–volt Mallory battery was found in the
trunk of the Impala September 21.
Lynn Coleman identified defendant as the man he saw get out of a

Mercedes and place a paper sack in a trash can at the site of explosion
No. 1. He said this occurred after 9:00 PM, September 1, 1978.
Coleman later heard an explosion. Coleman had not contacted
government agents concerning this observation until February, 1981,
more than two years after the event, and four months after the first
trial. He said he had parked in front of a store; a Mercedes pulled by on
his left; went up a few car lengths; made a U turn; passed him in the
opposite direction; and stopped about 100 feet back of Coleman.
Through his rear view mirror he saw the man he identified as
defendant get out, reach for a sack, take it over to the trash container,
put it in, and leave.
Kimberlin IV, 805 F.2d at 219–21.
This recitation of the evidence excluded testimony from six witnesses who
were hypnotized by Appleby, although that testimony likewise supported the
verdict. Id. at 221–23. As he explained at a suppression hearing and in his
7
declaration, Appleby did so without attempting to influence their memory. Id.;
(Supp. T. 15–16).
Prior to the bombing trial, Appleby had investigated Kimberlin “over a period
of several years during the mid-1970s because he was a suspect in multiple criminal
matters.” (A 14-15.) Appleby compiled a three-to-six inch file, which he says he
gave to ATF agents working the case. (Id.) ATF Agent Donovan says that he saw
this file, but never retained possession of it nor reviewed it outside of Appleby’s
presence. (A 1-2.) The file did not contain exculpatory material and was not given
to Kimberlin in discovery. (A 1-2; A 14-15.) The file no longer appears to exist.
(Id.; see also Gov.’s Discovery Response.)
2. “Brett Kimberlin wanted the hair analyzed. The government didn’t.”
On surrebuttal, Kimberlin called Michael T. Oliver, an ISP examiner, to
testify. (T. 6946–48.) Oliver, with Kimberlin’s assent, compared Kimberlin’s hair to
hair found on a hat inside the 1970 Impala and hair found on masking tape on a
piece of plastic bag found approximately 10 feet from the blast site from September
1, 1978. (T. 6795, 6949–54, 6961.)
The ISP laboratory has long recognized the limitations of hair comparison:
8
(A 22.)
Employing that standard, Oliver testified about the hair comparison. (T.
6953–54.) He stated that, “It is my opinion that the four human hairs that had
been removed from the hat were sufficiently similar to Mr. Kimberlin’s to be of
common origin.” (T. 6959.) But he could not “say positively they are or are not his”
only that they are “sufficiently similar that, in [his] professional opinion, they are
from the same origin.” (Id.) On cross-examination, he reiterated that he “cannot
state, in fact, that they are Brett Kimberlin’s hairs.” (T. 6969.)
As to the hair found on the tape, Oliver did not form an opinion. (T. 6963–
64.) Instead, “There was enough color difference that I wouldn’t expect them to be
from the same source. But without having a known [pubic hair] sample, I couldn’t
make a definite opinion.” (Id.)
In closing arguments, Kimberlin relied on the hair testimony in an attempt to
show his innocence:
9
[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.
***
Sergeant Oliver. Let’s talk about him as a witness for a while.
Sergeant Oliver is the Indiana State Police laboratory man who
analyzes hairs and hair fibers and other kinds of things too. But he has
testified in courts before. And Brett Kimberlin’s -- the Government
never checked that hair, never checked the hair. We learned when ATF
chemist was on the witness, stand, said Oh, does your lab do this,
examine hairs, et cetera? And he said Well, the hairs -- and we lit up.
Had no idea there were hairs. Lit up and found out about hairs. . . .
***
Brett wanted the hair analyzed. If Brett Kimberlin – now that hair
may have been from somebody in a swimming pool when it was
cleaned out and dumped in that dumpster or anything else. Hey, we
don’t know where the hair came from, right. No proof of where it came
from. But I will tell you this: if you are a bomber, if anybody knows he
is a bomber he would know whether or not he is. Okay. And he knows
whether he is or not. He knows he is not. And he says Get that hair.
Not afraid of getting that hair and looking at it and examining it and
giving it to the State Police to look at. Something which a defense
lawyer doesn’t ordinarily do, rely upon the State Police to analyze
defense evidence. Okay. Highly unusual I suggest to you. And it is
unusual because most people accused of crimes are guilty and so he
can’t be doing that. Some people are not guilty. And a person who is
not guilty is not afraid to check that proof, and Brett was not afraid.
(T. 7230, 7324, 7324.)
The government’s approach to the hair analysis was much different. In its
case-in-chief, the government called William R. Dietz, a chemist from the ATF. (T.
3111–12.) On cross, he was asked about hair comparison:
Q. Is it possible to take a human hair and to analyze it down to a

point of the molecular makeup of that hair?
A. You mean as far as say metals and things of this nature?
Q. Yes.
A. It is possible. We don’t have that capability in our laboratory.
Q. Can you take a human hair and be able to, using mass spectro
10
analysis, be able to ascertain whether it came from a specified

individual?
A. Not being an expert in hair analysis, I don’t feel qualified to
answer that question.
(T. 3129–30.) The government also did not reference the hair sampling in closing.
(See T. 7198, et seq.)
Further, the Seventh Circuit, in describing the “strong” evidence against
Kimberlin, never mentioned hair analysis. Kimberlin IV, 805 F.2d at 219–21.
Convictions and Sentence
Over the course of three trials, Kimberlin was convicted on 33 of the 34
counts (he was acquitted on Count 30). Kimberlin III, 781 F.2d at 1248.3
He was sentenced to a 50-year term of imprisonment for manufacturing and
possessing a destructive device, and malicious damage by explosives with personal
injury in violation of 26 U.S.C. §§ 5861(d) and (f), and 18 U.S.C. §§ 844(f) and (i).
United States v. Kimberlin, 675 F.2d 866, 867 (7th Cir. 1982) (Kimberlin V);
Kimberlin VII, 7 F.3d at 529. He received a concurrent 12-year sentence for
impersonating a federal officer, illegal use of a DOD insignia, and illegal use of the
Presidential Seal in violation of 18 U.S.C. §§ 912, 701, and 713, respectively, and a
five-year term for receipt of explosives by a convicted felon in violation of 18 U.S.C.
§ 842(i)(1). Kimberlin III, 781 F.2d at 1249; Kimberlin V, 675 F.2d at 867.
Further, Kimberlin was a versatile criminal: He was also given a four-year
3Nor 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) (reinstating $1.6 million jury
verdict).
11
sentence by the United States District Court for the Southern District of Texas on
an earlier, unrelated conviction for conspiracy to distribute marijuana. Kimberlin
IV, 805 F.2d at 225.
Kimberlin’s Litigiousness: “I have filed over a hundred lawsuits and

another one will be no sweat for me”
Thus began Kimberlin’s interminable crusade against his convictions. He
filed direct appeals in the Seventh Circuit:
 United States v. Kimberlin, 673 F.2d 1335 (7th Cir. 1981) (table)
(affirming Counts 26–29 and 31–24) (Kimberlin I);
 United States v. Kimberlin, 692 F.2d 760 (7th Cir. 1982) (table)
(affirming convictions on Counts 23 and 24) (Kimberlin II);
 Kimberlin III, 781 F.2d 1247 (appeal from district court’s denial of
Rule 35 motion, concerning Counts 26–29 and 31–34, affirming five
counts, but vacating three of the four 26–29 counts as multiplicitious);
 Kimberlin IV, 805 F.2d 210 (direct appeal for bombing convictions,
affirming Counts 1–22).
He collaterally attacked his convictions:
 Kimberlin V, 675 F.2d at 867 (appeal from denial of collateral attack);
 United States v. Kimberlin, 776 F.2d 1344 (7th Cir. 1985) (appeal from
denial of Rule 35 motion) (Kimberlin VI);
 Kimberlin VII, 898 F.2d 1262 (appeal from denial of motion to reduce
sentence);
 Kimberlin v. United States, No. IP 00-280-C-D/G; IP 79-7-CR (S.D. Ind.

May 3, 2000) (28 U.S.C. § 2255 motion claiming, among other things,
ineffective assistance of counsel, Brady and Jencks Act violations,
unconstitutional vagueness of his § 701 conviction, and that additional
forensic testing of hair would be exculpatory, denied because it was
“newly asserted speculation”);
 Kimberlin v. United States, No. 8:04-cv-02881-AW (D. Md. June 14,
12
2005) (§ 2255 motion raising identical claims as § 2255 motion in the

Southern District of Indiana, dismissed for lack of jurisdiction).
And he filed at least four 21 U.S.C. § 2241 petitions relating to his parole:
 Kimberlin v. Smith, No. 84 C 5924, 1985 WL 2011, at *1 (N.D. Ill. July

9, 1985);
 Kimberlin v. Brewer, 825 F.2d 1157 (7th Cir. 1987);
 Kimberlin v. White, 798 F. Supp. 472 (W.D. Tenn. 1992), aff'd, 7 F.3d
527 (6th Cir. 1993) (Kimberlin VII);
 Kimberlin v. Dewalt, 12 F. Supp. 2d 487 (D. Md.), aff'd sub nom.

Kimberlin v. Bidwell, 166 F.3d 333 (4th Cir. 1998).
He managed to save time for several vexatious lawsuits. For example, he
sued the Bureau of Prisons for preventing a pre-election press conference regarding
his claim to have sold marijuana to former Vice President Dan Quayle, Kimberlin v.
Quinlan, 251 F. Supp. 2d 47 (D.D.C. 2003); he sued U.S. Senators Mitch McConnell
and Chuck Grassley regarding the nomination of Judge Merrick Garland to the
Supreme Court, Kimberlin v. McConnell, No. GJH-16-1211, 2016 WL 8667769, at *1
(D. Md. June 3, 2016), aff’d, 671 F. App’x 128 (4th Cir. 2016); and he claimed that a
criminal enterprise was spreading defamatory stories about him, Kimberlin v. Frey,
No. GJH-13-3059, 2017 WL 3141909, at *1 (D. Md. July 21, 2017), aff’d, 714 F.
App’x 291 (4th Cir. 2018). “There are many other, unpublished decisions.”
Kimberlin VII, 898 F.2d at 1264.
In a nod to his serial filing, Kimberlin boasted: “I have filed over a hundred
lawsuits and another one will be no sweat for me.” Kimberlin, 2017 WL 3141909, at
*1.
13
Eventually, Kimberlin was released in 1994. Kimberlin v. U.S. Parole
Commission, No. 01-1212 (D.D.C. Sept. 30, 2002). In 1997, his parole was revoked
because he submitted a fraudulent mortgage loan application and had failed to
make good faith efforts to repay his civil judgment. Id.
He was released, for good, in 2001. Find an Inmate, Federal Bureau of
Prisons, https://www.bop.gov/inmateloc/ (last visited June 12, 2019).
FBI/DOJ Microscopic Hair Comparison Analysis Review
Some 14 years after Kimberlin’s release, the FBI commenced a review of hair
comparison testimony introduced at previous trials.
Unlike the ISP, the FBI had overstated the accuracy of hair comparison.
Prior to December 31, 1999, the FBI used microscopic hair comparison; whereas
afterwards the FBI began using mitochondrial DNA in hair comparisons. Director
Comey Letter to Additional Governors on State Reviews, https://www.fbi.gov/file-
repository/second-governor-letter-061016.pdf/view (last visited June 12, 2009)
(“Comey Letter”). The former practice was deemed scientifically unreliable. FBI
Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of
Cases in Ongoing Review, https://www.fbi.gov/news/pressrel/press-releases/fbi-
testimony-on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-
cases-in-ongoing-review (last visited June 12, 2009) (“FBI Testimony”).
Thus, in 2015, “The FBI, in conjunction with the Department of Justice
(DOJ) . . . engaged in a review of scientific testimony provided by FBI Laboratory
examiners in cases involving microscopic hair review.” FBI/DOJ Microscopic Hair
14
Comparison Analysis Review, https://www.fbi.gov/services/laboratory/scientific-
analysis/fbidoj-microscopic-hair-comparison-analysis-review (last visited June 12,
2019). “The purpose of the review [wa]s to ensure that FBI Laboratory examiner
testimony regarding microscopic hair comparison analysis met accepted scientific
standards.” Id. The process was explained as such:
The Department has been working together with the Innocence Project
to address errors made in statements by FBI examiners prior to
December 1999 regarding microscopic hair analysis in the context of
testimony or laboratory reports. Such statements are no longer being
made by the FBI, and the FBI is also now employing mitochondrial
DNA hair analysis in addition to microscopic analysis. However, the
Department and the FBI are committed to ensuring that affected
defendants are notified of past errors and that justice is done in every
instance. The Department and the FBI are also committed to ensuring
the accuracy of future hair analysis testimony, as well as the
application of all disciplines of forensic science. The Department and
FBI have devoted considerable resources to this effort and will
continue to do so until all of the cases are addressed.
Department of Justice and FBI Joint Statement on Microscopic Hair Analysis, 2015
WL 1775844 (April 19, 2015) (News Release) (“Joint Statement”).
Put briefly, the review “[i]n many cases . . . discovered that the examiners
made statements that went beyond the limits of science in ways that put more
weight on a hair comparison than scientifically appropriate.” See Comey Letter. In
such cases, “examiners made statements that went too far in explaining the
significance of hair comparison.” Id. When, instead, “appropriate testimony should
have made the limits of hair comparison clear.” Id.
To remedy past errors, the panel attempted to locate and notify defense
counsel of the review, and sought to ensure that individuals in affected cases had
15
access to volunteer attorneys. See FBI Testimony. In such cases, the DOJ agreed to
forego procedural objections. Id.
Kimberlin’s case was not identified during this extensive review, to the best
of the government’s knowledge.
Kimberlin’s Litigiousness, Continued: Coram Nobis
In 2018, Kimberlin commenced a barrage of filings. Across at least 10
motions encompassing 58 pages, he raised several claims: First Amendment
violations; ineffective assistance of counsel; improper hair analysis; juror bias and
misconduct; discovery violations; objections to the hypnosis; and moved for
discovery and a hearing. (Dkt. 1, 18, 20, 21, 22, 26, 30, 31, 32, 33.) Some of his
filings were styled as § 2255 motions, some as coram nobis motions; some were pro
se, some by counsel. (Id.) He eventually acknowledged that because he is no longer
in custody, he could only seek coram nobis relief. (Dkt. 3.)
The Court consolidated pending motions in Kimberlin’s criminal case, No.
1:79-cr-00007-TWP-MJD-1—bar his motion under 18 U.S.C. § 3600—into this civil
action, giving the United States until July 1, 2019 to respond. (Dkt. 29)
The government undertook rather laborious steps to respond, culling through
a pre-digitized—and potentially incomplete—record. Those steps are outlined in
the government’s contemporaneously filed response to Kimberlin’s discovery
requests. (See Dkt.38.) Despite the state of the voluminous record and the
significant passage of time, the United States attempts to respond below to each of
Kimberlin’s copious claims in this omnibus brief.
16
STATEMENT OF THE ISSUE
Whether Brett Kimberlin is entitled to the extraordinary remedy of coram
nobis relief.
DISCUSSION
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 is custody, and
thus cannot proceed under § 2255. 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, 911 (2009). Thus, because “judgment finality
is not to be lightly cast aside . . . courts must be cautious” in granting coram nobis
relief. Id. “[C]oram nobis relief lies in tension with the public’s interest in finality
of judgment,” especially because “a coram nobis petitioner is not in custody [thus
t]he harm to the petitioner is therefore much less.” Moskowitz v. United States, 64
F. Supp. 3d 574, 577 (2014) (citing Foont v. United States, 93 F.3d 76, 80 (2d Cir.
1996); United States v. Osser, 864 F.2d 1056, 1059 (3d Cir. 1988); United States v.
Mandel, 862 F.2d 1067, 1077 (4th Cir. 1988); George, 676 F.3d at 254).
As the Seventh Circuit 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.
United States v. Sloan, 505 F.3d 685, 698 (7th Cir. 2007) (citing United States v.
Keane, 852 F.2d 199, 204 (7th Cir. 1988)) (emphasis in Sloan). Such “continual
17
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.),
amended on other grounds, 919 F.2d 57 (7th Cir. 1990) (quoting United States v.
Bush, 888 F.2d 1145, 1150 (7th Cir. 1989)).
In fact, the Supreme Court has explained that, “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)).
The Seventh Circuit—“[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).
Kimberlin bears this “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)). “It is presumed that the proceedings leading to conviction were correct.”
United States v. Scherer, 673 F.2d 176, 178 (7th Cir. 1982) (citing United States v.
Morgan, 346 U.S. 502, 512 (1954)). Thus, his “burden . . . is, and properly should
be, greater than that placed on a habeas petitioner.” Mandel, 862 F.2d at 1077.
18
Kimberlin cannot carry his burden. He, astonishingly, claims that no fewer
than five errors meet this rigorous burden and yet evaded multiple rounds of review
until now. As discussed below, he is mistaken.
I. Kimberlin’s Coram Nobis Is Barred By Laches
“Laches is a bar to the bringing of a motion for a writ of coram nobis.” United
States v. Correa-DeJesus, 708 F.2d 1283, 1286–87 (7th Cir. 1983) (citing Morgan,
346 U.S. at 512; United States v. Moore, 166 F.2d 102 (7th Cir. 1948)). The doctrine
of laches “protects against ‘sandbagging’ and ensures that coram nobis relief will
not be granted where a petitioner’s inexcusable delay in raising his claim has
prejudiced the government.” Darnell, 716 F.2d at 481 n.5 (citing Norris v. United
States, 687 F.2d 899, 910 (7th Cir. 1982) (Cudahy, J., concurring)). “Laches consists
of two elements: (1) the lack of diligence by the [petitioner], and (2) prejudice
resulting from the delay.” Zelazny v. Long, 853 F.2d 540, 541 (7th Cir. 1988).
As to prejudice, “[t]his case is a textbook example of the problems arising
from an inordinate delay in seeking relief.” Darnell, 716 F.2d at 481. “The
cognizable claims that [Kimberlin] raises . . . are troublesome even where a
complete record of the proceedings exist.” Id. The record here, to the extent it
exists, is in poor shape. Take the Seventh Circuit from 34 years ago: “the
disheveled state of this record makes it difficult to understand exactly what
transpired in the district court.” Kimberlin VI, 776 F.2d at 1350. Unsurprisingly,
time has not improved the state of the record.
Beyond that, the institutional knowledge of this case has evaporated. The
19
Assistant United States Attorneys and law enforcement officers who worked on this
case are either retired (or deceased). Witnesses are likely in the same boat—one of
Kimberlin’s victims, unfortunately, committed suicide. Kimberlin VII, 7 F.3d at
529. Memories have faded. Evidence has been lost or destroyed. This constitutes
prejudice for laches. Pruitt v. City of Chicago, 472 F.3d 925, 928–29 (7th Cir. 2006).
In other words, if Kimberlin were to prevail in his coram nobis—he, of course,
should not—the government would face significant impediments to retrying a man
responsible for a series of bombings. (In fact, merely responding to these motions
has presented problems considering the deteriorating record and fog of 40 years’
passage.) Laches is intended to prevent just that: “The last thing this Court should
do is create an incentive for delay by persons challenging criminal convictions.”
Correa-DeJesus, 708 F.2d at 1286–87.
Kimberlin was also not diligent. See infra. pp. 23-26. Compare delays in
other cases. In Darnell, the Seventh Circuit held that “a twenty-year delay is
strong evidence of a lack of reasonable diligence in ascertaining potential grounds
for relief.” 716 F.2d at 481. In Correa-DeJesus, a delay of 16 years was too long.
708 F.2d at 1286–87. Kimberlin’s case is 40 years old. And it’s not like Kimberlin
was unable or unwilling to file lawsuits. See supra pp. 12-16.
Laches bars Kimberlin’s decades-after-the-fact coram nobis.
II. First Coram Nobis Requirement: Kimberlin Has Not, and Cannot,
Show a Lingering Disability
Kimberlin “must show that there is an ongoing risk that an erroneous
conviction’s lingering disabilities will cause him serious harm.” Sloan, 505 F.3d at
20
697 (citing Bush, 888 F.2d at 1150–51; Craig, 907 F.2d at 658). A “lingering civil
disability” exists if, (i) the disability causes present harm, (ii) the disability arises
out of the erroneous sentence, and (iii) the potential harm to the petitioner is more
than incidental. Sloan, 505 F.3d at 697 (citing Craig, 907 F.2d at 658). The alleged
legal disability must be “substantial” and not merely a “speculative” or possible
harm. Howard, 962 F.2d at 653–654. This requirement is Constitution based: it
exists “to satisfy the ‘case or controversy’ requirement of Article III.” Darnell, 716
F.2d at 481 n.5 (citing Dellinger, 657 F.2d at 144 n.6).
Kimberlin cannot meet this standard. To start, even if he obtained relief
here, he would still be a convicted felon. His conspiracy to distribute marijuana
conviction, from the Southern District of Texas, would remain. That is “the end of
things, for a single felony conviction supports any civil 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. Kimberlin, in other words, has no available path to coram nobis
relief under controlling precedent. Id. That should end this matter.
And that is doubly true here. Kimberlin was tried over the course of three
trials. Kimberlin III, 781 F.2d at 1248. So, even if he could show an error in his
bombing trial, his DOD impersonation convictions would remain—and vice versa.
Even as to his local convictions, he has no path to vacatur of all his convictions and
thus no path to coram nobis relief. Keane, 852 F.2d at 205.
In all events, his claims of legal disability are insubstantial. He says he was
denied a car loan, lost donations to his nonprofit organization, and suffered
21
reputation harm.4 (Dkt. 18, 22.) According to him, his convictions have had a
“harmful effect on [his] reputation, sanity, and financial well-being.” (Dkt. 22.)
But financial and reputation harms do not suffice. His “conviction is a black
mark, but that is not a civil disability.” Keane, 852 F.3d 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)). Nor do potential lost donations
suffice: “the prospect of getting money back is not enough by itself to support
belated review.” Id.
Kimberlin’s allegations only prove his privileged position among felons. He
has evidently been successful after imprisonment: he is “the director of a nonprofit”
that is “one of the top organizations in the world dealing with Russian malign
influence,” which has “formed a partnership with EuromaidanPR, the largest media
outlet in Ukraine.” (Dkt. 18, 22.) Considering the post-incarceration employment
opportunities available to most felons, Kimberlin’s lingering disabilities are slight.
Compare a lingering disability that does suffice. The Seventh Circuit
recently found deportation to satisfy this prong of coram nobis:
Delhorno has been deported from the country where he had lived since
4Kimberlin also makes several extravagant claims that he has “suffered years of
death threats, stalkers, [and] assaults from extremists.” (Dkt. 18; see also Dkt. 22.)
Whatever the veracity of these allegations, they owe to Kimberlin’s political
activism, not to any ongoing civil disability owing to his convictions.
22
he was three years old, back to a country where he likely has minimal
ties. His children and fiancée live in the United States, and he will not
be able to return unless his conviction is vacated. This is a significant
additional penalty that followed his term of imprisonment.
United States v. Delhorno, 915 F.3d 449, 453 (7th Cir. 2019). Delhorno wanted
relief from the trauma of being deported from his family and lifelong country. Id.
Kimberlin wants financial benefits. (Dkt. 18.)
Thus, Kimberlin “is not burdened by continuing disabilities that could justify
the investment of judicial time necessary to decide whether he is entitled to
vindication.” Keane, 852 F.2d at 204. He is not entitled to coram nobis relief.
III. Second Coram Nobis Requirement: Kimberlin Does Not Have a

Sound Reason for Failing to Seek Relief Sooner
Next, Kimberlin must explain why he failed to seek relief earlier. He must
show a “sound reason” for failing to seek relief earlier. Wilkozek, 822 F.3d at 368.
Coram nobis “is neither a recapitulation of nor a substitute for a direct
appeal.” United States v. Nazon, 936 F. Supp. 563, 566 (N.D. Ind. Aug. 7, 1996)
(citing McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996)).
Thus, “claims that could have been raised by direct appeal are outside the scope of
the writ.” Mercado v. United States, 104 F. Supp. 2d 1059, 1064 (E.D. Wis. 2000)
(citing Darnell, 716 F.2d at 480–81 n.5; Keane, 852 F.2d at 202). So “a coram nobis
petition is barred unless it ‘presents questions that could not have been resolved at
the time of conviction.’” Id. (quoting Bush, 888 F.2d at 1146) (emphasis in Mercado).
Nor is coram nobis “a substitute for § 2255” petition. Cooper v. United States, 199
F.3d 898, 901 (7th Cir. 1999).
23
As to newly discovered evidence, he “must also show that due diligence on his
part could not have revealed the evidence prior to trial.” Scherer, 673 F.2d at 178
(citing United States v. Hedman, et al., 655 F.2d 813, 814 (7th Cir. 1981)).
A. Kimberlin’s Hair Analysis Claim Could Have Been Raised Four

Years Ago
First, Kimberlin claims that the hair analysis (that he introduced)
constituted false testimony. (Dkt. 22, 30, 31, 32, 33.) In doing so, he relies on the
FBI’s 2015 hair analysis review. (See id.)
But he has not explained why he waited nearly four years. Joint Statement.
In a companion motion under § 3600, Kimberlin sought refuge in the development
of the science of DNA hair analysis, but he offers no explanation as to why he did
not present his motion in 2015 or some reasonable time thereafter. And, in fact, the
FBI has employed the modern hair analysis since 1999. Comey Letter.
Of all people, Kimberlin has no excuse. He is extraordinarily litigious,
evincing ongoing attempts to stay abreast of possible claims he can raise in the
courts. Kimberlin VII, 898 F.2d at 1264. He was also capable of doing so, as “a man
of above average intelligence.” Kimberlin VII, 798 F. Supp. at 474.
Kimberlin has no sound reason for his lack of diligence. See Foont, 93 F.3d
76 (rejecting petition after five-year delay); Nordahl v. United States, 425 F. App’x
35 (2d Cir. 2011) (unpublished) (rejecting petition after three-and-a-half-year-
delay); Mastrogiacomo v. United States, No. 90–cr–565 (KTD), 2001 WL 799741, at
*2 (S.D.N.Y. July 16, 2001) (rejecting petition after three-year delay).
24
B. Kimberlin’s Claim Regarding Appleby Could Have Been Raised At

Any Time Before Now
Kimberlin next claims that Appleby had been investigating him and that
Appleby’s investigative file should have been disclosed. (Dkt. 30.)
This claim could have been raised immediately. First, Appleby was a witness
at trial and this file could have been requested. And it was widely known that
Kimberlin had been under surveillance. See Bizarre Plots. Further, Kimberlin has,
post-trial, made multiple attempts at discovery at this case. (Dkt. 38, p. 1-5.)
Either he failed to request Appleby’s file or it was rejected then. (Cf. United States
v. Kimberlin, IP 79-cr-0007-01, (S.D. Ind. July 6, 1983) (Order denying Motion for
Post-Trial Discovery.)
And the manner in which Kimberlin discovered this information shows his
lack of diligence. According to Kimberlin’s filings, an investigative reporter
interviewed Appleby in 2019 and learned both pieces of information. (See Dkt. 30-
2.) In other words, Appleby voluntarily disclosed the information when asked. So
the information was not a secret hidden away from Kimberlin—Kimberlin just
never asked for it. He could have requested this information at the time of trial.
He was dilatory in not asking sooner. Scherer, 673 F.2d at 178.
C. Kimberlin’s Juror Bias Claim Also Could Have Been Raised At

Any Time Before Now
Kimberlin next raises a juror bias claim because Appleby’s ex-wife’s cousin’s
wife was a juror in Kimberlin’s trial. (Dkt. 30.)
He was dilatory raising this claims as well. Scherer, 673 F.2d at 178. At
25
trial, “[i]f [he] wanted to know more about [distant relationships], [he] should have
inquired during voir dire.” United States v. Delatorre, 572 F. Supp. 2d 967, 991–91
(N.D. Ill. 2008). But he did not, despite asking her many questions during voir dire.
(T. 207–08, 248–60.)
Moreover, as stated above, this information was gleaned from questioning
Appleby. See supra pp. 24-25. That questioning could have occurred at any point.
Kimberlin was dilatory. Scherer, 673 F.2d at 178.
D. Kimberlin’s Ineffective Assistance of Counsel Claim Could Have

Been Raised Nearly 40 Years Ago
Kimberlin also claims that his trial attorney was ineffective. (Dkt. 21, 22.)
He says his attorney should have contested Counts 26 and 30–34. (Id.)
These claims invariably derive from his 1981 trial. They could have been
raised earlier and are thus “outside the scope of the writ.” Mercado, 104 F. Supp. 2d
at 1064 (citing Darnell, 716 F.2d at 480–81 n.5; Keane, 852 F.2d at 202). In fact, he
did raise these claims before. Kimberlin, No. IP 00-280-C-D/G; IP 79-7-CR.
E. Kimberlin’s Hypnosis Claim Could Have Been—and Was—Raised

33 Years Ago
While somewhat unclear, Kimberlin also appears to want to relitigate the
hypnosis of witnesses. (Dkt. 30.) He cannot do so. Mercado, 104 F. Supp. 2d at
1064 (citing Darnell, 716 F.2d at 480–81 n.5; Keane, 852 F.2d at 202); see Kimberlin
IV, 805 F.2d at 216–23. This is not a viable claim here.
F. Kimberlin’s First Amendment Claim Could Have Been Raised

Seven, or at Least Three, Years Ago
He also, relying on United States v. Alvarez, 567 U.S. 709 (2012) and United
26
States v. Swisher, 811 F.3d 299 (9th Cir. 2016), contends that his four convictions
under § 912 and one conviction under § 701 should be vacated. These claims are too
late, as the government explained in its response to Kimberlin’s first coram nobis
filing, which the government incorporates by reference. (Dkt. 13.)
In sum, Kimberlin has not shown “sound reason” for his delay in bringing his
coram nobis. Wilkozek, 822 F.3d at 368.
IV. Third Coram Nobis Requirement: Kimberlin Was Fairly and Rightly
Convicted and Cannot Show a Fundamental Defect
Kimberlin must further 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); Scherer, 673 F.2d at 178; 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.’” Delhorno, 915 F.3d at 453 (citing 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).
That is a high bar: “Juror misconduct, prejudicial misconduct during trial,
and newly discovered evidence are not fundamental errors warranting coram nobis
relief.” United States v. Marchesseault, 692 F. App’x 601, 603 (11th Cir. 2017)
(citing United States v. Mills, 221 F.3d 1201, 1203–04 (11th Cir. 2000)).
A. Kimberlin—Not the Government—Introduced the Hair Analysis

Testimony He Now Complains About; In All Events, He Cannot
Show a Napue Violation
Kimberlin’s hair analysis claim is a paradigmatic example of chutzpah. He
says that hair analysis testimony was “false evidence”—but audaciously neglects to
27
mention that he was responsible for its introduction at trial.
1. Kimberlin Invited, and/or Waived, Any Objection to the Hair

Analysis Testimony He Himself Introduced
As an initial matter, Kimberlin has invited and/or waived any error
regarding the hair analysis testimony.
Kimberlin, himself, introduced the hair testimony. (T. 6946–48.) Thus, 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 (7th
Cir. 1981)). “When an error is invited, not even plain error permits reversal.”
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)); cf. United States v.
Muskovsky, 863 F.2d 1319, 1329 (7th Cir. 1988).
Kimberlin obviously invited any error here. He said so himself: “Brett
Kimberlin wanted the hair analyzed. The Government didn’t.” (T. 7230.) He thus
invited any error and cannot benefit now. Naeem, 444 F.3d at 609.
Even if he did not invite error, Kimberlin waived this claim. He introduced
the evidence, sought to benefit from it in closing, and even chastised the
government for not introducing the evidence. (T. 7230, 7234–25.) He therefore
deliberately, and strategically, raised the hair analysis at trial, which precludes
further review. 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); United States v.
Jacques, 345 F.3d 960, 962 (7th Cir. 2003)).
28
This Court should reject Kimberlin’s bait-and-switch.
2. Kimberlin’s Case Does Not Fit the Criteria for the FBI/DOJ’s
Microscopic Hair Comparison Review
Next, Kimberlin attempts to unilaterally avail himself of the DOJ’s hair
comparison review. (Dkt. 22, 26, 30, 31.) But his case does not merit review (which
is likely why the review program has not contacted him).
His case facially does not meet the criteria. First, the review covers the
government’s introduction of overstated scientific testimony. Here, Kimberlin—not
the government—introduced the hair analysis testimony. (T. 6946–48.) His
attempt to attack the government for evidence he introduced is duplicitous.
Regardless, the testimony does not meet the parameters of the review. The
impetus for the DOJ/FBI’s review was that the FBI overstated the scientific
reliability of hair comparison prior to 1999. See Joint Statement. But the hair
comparison at Kimberlin’s trial was conducted by the ISP. (T. 6946–48.) The ISP
did not overstate the scientific reliability of hair comparison; in fact, the ISP’s
standards acknowledged the fallibility of hair comparison. (A 22.) And Oliver’s
testimony here acknowledged the limitations of hair comparison. (T. 6959, 6969.)
The FBI/DOJ review program is inapplicable to Kimberlin.
Not content with brazenly claiming entitlement to this review, he attempts to
expand his rights under the review. He says that not only should the government
consent to review, it should consent to vacatur. (Dkt. 31.) That misrepresents the
policy. And a case he cites, United States v. Ausby, 916 F.3d 1089 (D.C. Cir. 2019),
is instructive. There, the government agreed that the hair testimony it introduced
29
was false. Id. at 1090. But the government did not consent to vacatur; instead, it
disputed the materiality of the testimony. Id. at 1092. And, as discussed below, see
infra pp. 30-33, Kimberlin cannot show materiality warranting reversal. So, even if
Kimberlin were subject to the review process, his claim would still fail.
In the end, Kimberlin cannot unilaterally avail himself of DOJ policies.
3. In All Events, Kimberlin Cannot Show a Napue Violation
Seeking to capitalize on his own introduction of the hair testimony,
Kimberlin claims a violation under Napue v. Illinois, 360 U.S. 264 (1959). (Dkt. 30,
31.) But Napue is inapplicable.
In Napue, the prosecutor elicited testimony from a witness that the witness
had not received any promises in exchange for his testimony. 360 U.S. at 265. That
was false, and the prosecutor did not correct the witness. Id. The Court found that
violated the defendant’s due process rights. Id. at 269. “Napue stands for the
proposition that prosecutors may not suborn perjury.” United States v. Are, 590
F.3d 499, 509 (7th Cir. 2009) (citing United States v. Holt, 486 F.3d 997, 1003 (7th
Cir. 2007)).
Kimberlin bears the burden of showing a Napue violation. United States v.
Cosby, 924 F.3d 329, 336 (7th Cir. 2019). He must show that: “(1) the prosecution’s
case included perjured testimony; (2) the prosecution knew, or should have known,
of the perjury; and (3) there is a likelihood that the false testimony affected the
judgment of the jury.” Id. (citing United States v. Coleman, 914 F.3d 508, 512–13
(7th Cir. 2019)) (internal quotations omitted).
30
Kimberlin cannot show any of the three prongs. First, the purported false
testimony was not introduced in the government’s case. Id. Thus, there can be no
Napue violation. Long v. Pfister, 874 F.3d 544, 548 (7th Cir. 2017).
Moreover, the testimony does not appear to be false. The witness never
stated, with scientific certainty that the hair was a match. Instead, his testimony
was infused with hedging: “They most likely are [Kimberlin’s hairs]”; “cannot state,
in fact, that they are Brett Kimberlin’s hairs”; and that his opinion was only “as
close as anybody can come on hair analysis.” (T. 6959, 6969.)
Second, the prosecution did not know this evidence was false. Cosby, 924
F.3d at 336. How could it? The testimony was inconclusive. (T. 7230.)
Third, the evidence was not material. Cosby, 924 F.3d at 336. Kimberlin
admitted as much at trial: “Okay, the hair may not have proven much at all.” (T.
7230.) His claim of materiality now directly conflicts with his admission, at trial,
that the hair testimony was unimportant. (Id.) Nor did the government rely on the
hair testimony in its closing. (See T. 7198, et seq.) If that were not enough, the
Seventh Circuit, in finding the evidence of Kimberlin’s guilt to be “strong” did not
mention the hair testimony. Kimberlin IV, 805 F.2d at 219–21.
Put differently, the hair testimony, even if it had identified a third party,
would not have exonerated Kimberlin. Kimberlin himself implicitly admitted that
at trial: “that hair may have been from somebody in a swimming pool when it was
cleaned out and dumped in that dumpster or anything else.” (T. 7324.) If the hair
could have come from any unrelated person, it cannot have been exculpatory.
31
Kimberlin has not shown that this evidence was material to his verdict.
Kimberlin has come nowhere close to showing a Napue violation. Compare a
recent Seventh Circuit case which explained the context in which Napue violations
can arise: “In Napue and its successors: (a) the false testimony was elicited by the
prosecutor . . . ; (b) the truth was unknown to the defense; (c) the prosecutor asked
the jury to rely on the false testimony; and (d) the jury never learned the truth.”
Long, 874 F.3d at 548. Those factors are not present here.
Thus, Kimberlin’s case is unlike cases he relies on. (Dkt. 30, 31.) In each
case he cites, the government introduced the incorrect scientific testimony (not all of
his cases involve the FBI review process, however). See Ausby, 916 F.3d at 1090
(prosecution introduced the testimony); Jones v. United States, 202 A.3d 1154, 1157
(D.C. 2019)5 (same); Commonwealth v. Clark, 528 S.W.3d 342, 345 (Ky. 2017)
(same); Pitts v. State, 501 S.W.3d 803 (Ark. 2016) (same); Com. v. Perrot, 2016 WL
380123, at *7–8, 15–17, 24, 32, 40–41 (Mass. Superior Ct., Hampden Cty., Jan. 26,
2016) (same); Huffington v. Maryland, No. 10-K-83-6373 (Frederick County Cir. Ct.
2013) (same) (see Dkt. 31, p.7 n.4); State v. Armstrong, 700 N.W.2d 98, 114, 122
(Wis. 2005) (same); Long v. State, 689 So.2d 1055, 1058 (Fla. 1997) (same);
Horstman v. State, 530 So.2d 368, 369 (Fla. Dist. Ct. App. 1988) (same); cf. United
States v. Flick, 2016 WL 80669, at *1–2 (W.D. Penn. Jan. 7, 2016) (government
compiled false expert report, persuading defendant to plead guilty).
5Kimberlin misidentifies this case, Jones, as a D.C. Circuit case. (Dkt. 30, 31.) It is
actually a D.C. Court of Appeals case.
32
Ausby is the one circuit court case that grappled with the issue. There,
because the United States introduced the evidence—unlike here—it agreed that the
evidence was false, but disputed materiality. 916 F.3d at 1090, 1092. The D.C.
Circuit found that the testimony was material because it “was the primary evidence
that directly contradicted Ausby’s defense theory.” 916 F.3d at 1095.
Here, the hair was obviously not primary. See supra pp. 30-31. This isn’t a
situation where DNA found on a victim is dispositive.
Thus, any error was harmless. Kimberlin must show that an error had a
“substantial and injurious effect” on the verdict. Brecht v. Abrahamson, 507 U.S.
619, 623, 637–38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)); cf. United States v. Dominguez Benitez, 542 U.S. 74, 81 n.7 (2004); United
States v. Vonn, 535 U.S. 55, 62 (2002); United States v. Spellissy, 438 F. App’x 780,
783 (11th Cir. 2011). He has failed to do so.
Kimberlin has not carried his Napue, much less his coram nobis burden.
B. Kimberlin Was Not Entitled to Appleby’s File, Which Was Not

Exculpatory, and Not Grounds for Coram Nobis
Kimberlin next claims that Appleby “had been secretly investigating [him] for
years.”6 (Dkt. 30.) He, essentially, contends that Appleby’s investigative file should
6Technically, he bases these claims on hearsay. He relies on the affidavit of a

reporter, which relays what Appleby purportedly told the reporter. (Dkt. 30-2.)
These “repetition of statements made to [him] . . . are inadmissible hearsay that
cannot be properly considered.” Schnusenberg v. University of Chicago, 1997 WL
30991, at *4, n.1 (N.D. Ill. Jan. 23, 1997) (citing Russell v. Acme-Evans Co., 51 F.3d
64, 68 (7th Cir. 1995)); see also United States v. Smith, 816 F.3d 479, 481 (7th Cir.
2016) (citing Fed. R. Evid. 801(c)). That said, the government contacted the now-
retired Appleby, who confirmed his prior investigation. (A 14-18.)
33
have been disclosed. That is not a viable coram nobis claim for several reasons:
 First, the hypnosis issue has been litigated. Appleby’s involvement in
this case was limited to the hypnosis of witnesses (and his testimony thereof). And
the Seventh Circuit already held that the hypnosis evidence did not affect the
verdict. Kimberlin IV, 805 F.2d at 223. So, even if Appleby’s file could have been
used to impeach him, the Seventh Circuit has already held that any error relating
to that testimony was harmless. Id.
So this is unlike Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019). (See Dkt. 31,
32.) In Sims, the Seventh Circuit granted habeas relief to a state petitioner because
the state suppressed evidence that the only witness to identify him as the culprit
had been hypnotized prior to trial to enhance his recollection. Id. at 1080. Here, of
course, the parties knew that witnesses had been hypnotized and Kimberlin
thoroughly litigated that issue. Kimberlin IV, 805 F.2d at 219–21.
 Second, there was no duty to disclose this information. Appleby had
kept a file investigating Kimberlin for his drug activities—for which, again, he was
guilty. Kimberlin IV, 805 F.2d at 225. Kimberlin claims the government “withheld”
exculpatory or impeachment evidence by not producing the entire “Appleby file.”
That is not right. “The Brady duty to disclose favorable evidence does not
mean that the prosecution is required to turn over its entire case file to the
defense.” Pruitt v. McAdory, 337 F.3d 921, 925 (7th Cir. 2003) (citing United States
v. Bagley, 473 U.S. 667, 675 (1985); Brady v. Maryland, 373 U.S. 83 (1963)); see also
34
United States v. Phillips, 854 F.2d 273, 278 (7th Cir. 1988) (“Brady does not grant
criminal defendants unfettered access to government files.”). And Kimberlin’s claim
is even more suspect: He wants the case file of a previous investigation. The
government had no duty to disclose that.
And, in fact, the file was not exculpatory. (A 1-2, 15.)
 Third, Kimberlin’s claim is entirely speculative. “[A] defendant cannot
demand a new trial based on ‘mere speculation’ or ‘unsupported assertions that the
government suppressed evidence.’” United States v. Jumah, 599 F.3d 799, 809 (7th
Cir. 2010) (quoting United States v. Driver, 798 F.2d 248, 251 (7th Cir. 1986)).
But all Kimberlin does is speculate. He alleges that Appleby secretly
investigated him for years. Putting aside the fact that many, or most,
investigations are “secret,” Kimberlin does not identify any exculpatory or
impeachment evidence gleaned during that investigation that the government
withheld. Instead, he merely posits that “that the [Appleby] file could have
contained exculpatory evidence or other evidence that could have been used to
explore bias.” (Dkt. 30 at 3 (emphasis added).) He engages in rank speculation
about Appleby’s “minor cues” or that he “overtly pressured the hypnotized
witnesses.” (Dkt. 32.) He even combines speculation with an ad hominem attack,
asserting that Appleby could have “demonstrated corruption or malfeasance.” (Id.)
Such supposition is insufficient: “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–
35
80) (quoting United States v. Balistrieri, 423 F. Supp. 793, 975 (S.D. Ill. 1976), aff’d,
606 F.2d 216 (7th Cir. 1979)); Jumah, 599 F.3d at 809. This is, as a previous judge
on this Court said about another of Kimberlin’s claims, “merely newly asserted
speculation.” Kimberlin, No. IP 00-280-C-D/G; IP 79-7-CR.
 Fourth, the Appleby file would be merely impeaching, not exculpatory.
That “is not grounds for granting a new trial.” Scherer, 673 F.2d at 179 (denying
writ of error coram nobis, in part, where newly discovered evidence was only
impeaching); accord United States v. Bender, 539 F.3d 449, 456 (7th Cir. 2008) (to
establish grounds for a new trial, defendant must show, in part, that newly
discovered evidence “is material, and not merely impeaching or cumulative”). This
rule is particularly relevant because the district court gave the jury cautionary
instructions, such as:
. . . not to attach greater weight or significance to testimony of

witnesses who have undergone hypnosis than that given to the
testimony of other witnesses, and that the jury may judge what effect,
if any, the process of hypnosis had upon the witness’ memory and
ability to recall.
Kimberlin IV, 805 F.2d at 216. Further, [t]he form of the instruction given each
time a hypnotized witness testified, was agreed upon by counsel.” Id.
Put differently, the Appleby file was not material. And the Supreme Court
does not “automatically require a new trial whenever a combing of the prosecutors’
files after the trial has disclosed evidence possibly useful to the defendant but not
likely to have changed the verdict.” Giglio v. United States, 405 U.S. 150, 154
(1972). Instead, a “finding of materiality of the evidence is required under Brady.”
36
Id. That means “any reasonable likelihood [that it] affected the judgment of the
jury” to the extent “suppression undermines confidence in the outcome of the trial.”
Giglio, 405 U.S. at 154; Bagley, 473 U.S. at 678. The Seventh Circuit’s finding that
the hypnosis testimony did not affect the outcome of the trial precludes a finding of
materiality here. Kimberlin IV, 805 F.2d at 223.
For all these reasons, any error was harmless. Brecht, 507 U.S. at 623, 637–
38. Kimberlin’s claims fail to carry his coram nobis burden.
C. Kimberlin Cannot Show That the Juror Was Impliedly Biased or

That She Committed Misconduct Warranting Coram Nobis Relief
Kimberlin next says that Shirley H. was implicitly biased and lied during
voir dire. (Dkt. 30) Neither claim warrants relief.
As above, both claims are based on hearsay. See supra pp. 33. However,
Appleby confirmed that his ex-wife’s cousin’s wife sat on the jury. (A 15.)
1. The Juror In Question Was Too Remotely Connected to the

Case to Be Impliedly Biased
Kimberlin claims that Shirley H., Appleby’s ex-wife’s cousin’s wife, was
implicitly biased. (Dkt. 32, p. 4.) But that is too tenuous of a link to presume bias.
A juror may be actually or impliedly biased. United States v. Warner, 498
F.3d 666, 710 (7th Cir. 2007) (citing United States v. Wood, 299 U.S. 123, 133
(1936)). Kimberlin claims only implied bias. (Dkt. 32, p. 4.) The “use of the
‘implied bias’ doctrine is certainly the rare exception.” Warner, 498 F.3d at 710
(citing Hunley v. Godinez, 975 F.2d 316, 318 (7th Cir. 1992) (per curiam)). It applies
only in “exceptional circumstances.” Hunley, 975 F.2d at 318 (citing Smith v.
37
Phillips, 455 U.S. 209, 222 n* (1982) (O’Connor, J., concurring)); United States v.
Mitchell, 690 F.3d 137, 144 (3d Cir. 2012) (implied bias applies when it is “highly
unlikely” the juror can be impartial).
Courts have not decided, exactly, what constitutes an implied bias.
“[C]onsanguinity is the classic example of implied bias.” Mitchell, 690 F.3d at 144
(citing Conaway v. Polk, 453 F.3d 567, 586–87, n.21, n.22 (4th Cir. 2006)). Besides
consanguinity, victimization by the accused and direct employment by the
prosecuting agency are sufficient. United States v. Brazelton, 557 F.3d 750, 754
(7th Cir. 2009); Smith, 455 U.S. at 222 (O’Connor, J., concurring); United States v.
Polichemi, 219 F.3d 698, 704 (7th Cir. 2000).
“So the question comes down to whether the relationship is close enough to
assume bias.” Brazelton, 557 F.3d at 754. But “little case law explores the outer
boundary of the kinship category.” Mitchell, 690 F.3d at 144.
An accounting of proposed boundaries is helpful. Justice O’Conner identified
“a close relative.” Smith, 455 U.S. at 222 (O’Conner, J., concurring). The Seventh
Circuit identified “any degree of kinship with a principal in the case,” but only
suggested that it “might seem prudent” to disqualify a victim’s second cousin.
Brazelton, 557 F.3d at 753–54. The Ninth Circuit, en banc, said it “would be quite
troubled” if a prosecutor’s brother was a juror, but “[o]f course, a juror could be a
witness or even a victim of the crime, perhaps a relative of one of the lawyers or the
judge, and still be perfectly fair and objective.” Dyer v. Calderon, 151 F.3d 970, 982
(9th Cir. 1998) (en banc). The Third Circuit “adopt[ed] the ‘close relative’ standard,”
38
because a “distant relative, on average, is unlikely to harbor the sort of prejudice
that interferes with the impartial discharge of juror service.” Mitchell, 690 F.3d at
870. The Eighth Circuit rejected a claim about a juror whose first cousin was
married to the brother-in-law of the defendant. Allen v. Brown Clinic, P.L.L.P., 531
F.3d 568, 572–73 (8th Cir. 2008).
Whatever the particular contours, Kimberlin fails to meet them. The juror
was not a “close relative.” Smith, 455 U.S. at 222 (O’Conner, J., concurring);
Mitchell, 690 F.3d at 870. The juror was not “kin[].” Brazelton, 557 F.3d at 753–54.
The juror was not the prosecutor’s brother—or even Appleby’s. Dyer, 151 F.3d at
982. In fact, the juror was not even a “distant relative.” Mitchell, 690 F.3d at 870.
The connection between the juror and Appleby is too tenuous for relief on direct
appeal, much less coram nobis.
And Kimberlin has identified no case, from any court, where a similar
relationship satisfied the implied bias standard. Likely because this so-called
relationship was far from “rare” or “exceptional.” Warner, 498 F.3d at 710; Hunley,
975 F.2d at 318. Take it from the Eighth Circuit:
The factual basis for [Kimberlin]’s claim of implied or presumptive

juror bias falls well short of the showing necessary to support such a
claim. Each juror pledged to be fair and impartial, and . . . the
relatively distant [non-]familial connection[] leads us to conclude the
juror[ was not] so closely associated with the defendant[] they could not
be impartial.
Allen, 531 F.3d at 573.
In the end, “due process does not require a new trial every time a juror has
been placed in a potentially compromising situation.” Smith, 455 U.S. at 217. And
39
that’s the best case Kimberlin can make. That’s not enough on direct appeal; and
it’s certainly not enough on coram nobis.
Finally, any error was harmless. Brecht, 507 U.S. at 623, 637–38. Besides
the strength of the evidence, see Kimberlin IV, 805 F.2d at 221, Appleby was not a
fact witness establishing Kimberlin’s guilt, nor an imperative witness at all. At
most, Shirley H.’s familiarity with Appleby may have caused her to place more trust
in his hypnosis; however, the Seventh Circuit has already held that the hypnotized
witnesses were immaterial to the verdict. Kimberlin IV, 805 F.2d at 219–23. So
Kimberlin cannot show any harm. Brecht, 507 U.S. at 623, 637–38.
2. Nor Did the Juror Herself Commit Misconduct
To the extent Kimberlin makes a juror misconduct claim, it is insufficient to
carry his burden. In fact, juror misconduct claims are insufficient for coram nobis,
period. Mills, 221 F.3d at 1203–04.
Regardless, there was no juror misconduct. To show misconduct warranting
a new trial (on direct appeal), Kimberlin “must first show ‘that a juror failed to
answer honestly a material question on voir dire’ and, if successful then must
demonstrated that ‘a correct response would have provided a valid basis for a
challenge for cause.’” United States v. Medina, 430 F.3d 869, 875 (7th Cir. 2005)
(quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984)); see
also United States v. Ghilarducci, 480 F.3d 542, 547–48 (7th Cir. 2007).
He cannot do so. First, Shirley H. answered truthfully when answering
direct questions during voir dire. She accurately stated that no member of her
40
“immediate family” worked for law enforcement and that none of her family was
connected to a prosecutor’s office. (T. 99.) Appleby was not her family. She
answered honestly. Ghilarducci, 480 F.3d at 548.
However, she was perhaps less forthcoming during en masse questioning.
Both the judge and Kimberlin asked whether any of the venire were “close friends”
with a law enforcement officer; Shirley H. did not answer. (T. 207–10.) Maybe that
was because she was not “close friends” with Appleby, although her husband
appears to have been. (A 15-17.) Ideally, she would have disclosed that
relationship, even if technically she was not “close friends” with Appleby.
But only concealments “that affect a juror’s impartiality can truly be said to
affect the fairness of a trial.” McDonough, 464 U.S. at 556; see also id. at 849–50
(noting reluctance “[t]o invalidate the result of a three-week trial” based on a juror’s
mistaken response in order “insist on something closer to perfection than our
judicial system can be expected to give.”). And it is questionable if this omission
was material. See supra pp. 37-40.
Regardless, this was not grounds for an exclusion for cause. A prospective
juror need be struck for cause only if she is unable to “lay aside h[er] impression or
opinion and render a verdict based on the evidence presented in court.” Irvin v.
Dowd, 366 U.S. 717, 723 (1961); see also United States v. Brodnicki, 516 F.3d 570,
574 (7th Cir. 2008) (citing 28 U.S.C. § 1866(c)(2)).
So a “trial judge has discretion to find that a juror’s mere relationship to a
law enforcement officer is insufficient to strike for cause.” United States v.
41
Nururdin, 8 F.3d 1187, 1191 (7th Cir. 1993) (citing Brogdon v. Butler, 838 F.2d 776,
778 n.1 (5th Cir. 1988); also citing United States v. Maldonado-Rivera, 922 F.2d
934, 970–71 (2d Cir. 1990)); see also United States v. Beasley, 48 F.3d 262, 266–67
(7th Cir. 1995) (juror whose brother was police chief and son was police officer not
stricken for cause in criminal trial). Similarly, a relationship with a witness is not
necessarily grounds for a cause strike. See, e.g., Stenhouse v. Hobbs, 631 F.3d 888,
892 (8th Cir. 2011); United States v. Taylor, 509 F.3d 839, 848 (7th Cir. 2007);
United States v. Rhodes, 177 F.3d 963, 965–66 (11th Cir. 1999); Ford v. Schofield,
488 F. Supp. 2d 1258, 1354–55 (N.D. Ga. 2007).
Even in such cases, “[w]hen the juror demonstrates, however, that she can
lay aside any opinion she might hold and render a judgment based solely on the
evidence presented in court, then dismissal is not required.” Rhodes, 177 F.3d at
965 (citing United States v. Martin, 749 F.2d 1514, 1517–18 (11th Cir. 1985)).
And Shirley H. consistently indicated that she could be impartial. (T. 209,
252, 256, 259, 260.) “Absent any reason to suspect that th[is] response w[as]
untrue, [the Court] must credit [it].” Nururdin, 8 F.3d at 1191 (citing United States
v. York, 933 F.2d 1343, 1367 (7th Cir. 1991), overruled on other grounds by Wilson v.
Williams, 182 F.3d 562 (7th Cir. 1999)). Because “surely one who is trying as an
honest [wo]man to live up to the sanctity of h[er] oath is well qualified to say
whether [s]he has an unbiased mind in a certain matter.” Id. (citing York, 933 F.2d
at 1367). Kimberlin cannot show that Shirley H. would have been struck for cause.
Regardless, any error was harmless. Brecht, 507 U.S. at 623, 637–38.
42
Kimberlin has not “establish[ed] a reasonable probability that, had [Shirley H.]
been stricken from the jury, the outcome of his trial to the twelve-person jury would
have been different.” United States v. Redd, 2007 WL 1724900, at *9 (N.D. Ind.
June 11, 2007). Any error was harmless. See supra pp. 38-42.
D. Kimberlin’s Attorney Was Not Ineffective
Kimberlin also claims that his trial attorney was ineffective. (Dkt. 21, 22.)
He says his attorney should have contested the counts relating to the unlawful
possession of insignias and impersonation of DOD officers. (Id.)
As an initial matter, Kimberlin has already raised an ineffective assistance of
counsel claim (although it’s unclear if he received an adjudication on the merits). I
think he did if this is what you are referring to (A. 32-58.) He is therefore foreclosed
from raising it now. Peoples v. United States, 403 F.3d 844, 847–48 (7th Cir. 2005).
“[I]neffective assistance of counsel is a single ground for relief no matter how many
failings the lawyer may have displayed.” Id. at 848. “That argument has been
considered and rejected before; it is no longer open.” Id. at 849.
In all events, Kimberlin cannot show ineffective assistance of counsel. To do
so, he would have to meet the two-part test established in Strickland v. Washington,
466 U.S. 668 (1984). He must show that (1) his attorney performed deficiently, and
(2) that deficiency prejudiced him. Id.
Such review is “highly deferential” to counsel’s performance. Id. at 689.
Thus, in evaluating whether counsel’s performance was deficient, “the court must
defer to counsel’s tactical decisions,” avoid “the distorting effects of hindsight” and
43
give counsel the benefit of a strong presumption of reasonableness. Id. “The proper
measure of attorney performance remains simply reasonableness under prevailing
professional norms.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting
Strickland, 466 U.S. at 688).
The prejudice prong is similarly stringent. Strickland requires showing “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different.” Strickland, 466 U.S. at 694.
It is not enough for Kimberlin to show that “the errors had some conceivable effect
on the outcome of the proceeding.” Id. at 693.
1. Kimberlin’s Attorney Was Not Deficient
Kimberlin cannot show deficient performance. He says his attorney should
have contested the constitutionality of his impersonation counts, relying on Alvarez.
(Dkt. 22, p. 8.)
But Alvarez post-dates Kimberlin’s trial by about 30 years. “The Sixth
Amendment does not require counsel to forecast changes or advances in the law.”
Valenzuela v. United States, 261 F.3d 694, 700 (7th Cir. 2001) (citing United States
v. Smith, 241 F.3d 546, 548 (7th Cir. 2001); Lilly v. Gillmore, 988 F.2d 783, 786 (7th
Cir. 1993)) (internal brackets omitted). Kimberlin cannot show deficient
performance on this ground.
Further, he would have to show the objection would have been successful.
See, e.g., United States v. Stewart, 388 F.3d 1079, 1084 (7th Cir. 2004). He cannot
do so. First, at the time, Alvarez did not exist; further, the Seventh Circuit
44
reviewed these convictions and saw no obvious constitutional problem. Kimberlin
III, 781 F.2d 1247. Nor does Alvarez impact his convictions. See infra. pp. 46-48.
2. Regardless, Kimberlin Suffered No Prejudice
Kimberlin also cannot show prejudice. He was rightly convicted and has not
shown that his convictions were unconstitutional. In other words, even if his
attorney had objected on First Amendment grounds, the objection was futile, and
Kimberlin would be in the same position as he is today. He suffered no prejudice.7
Finally, Kimberlin’s claim based on successfully filing a petition for certiorari,
and then “likely” winning in the Supreme Court, (Dkt. 22, p. 13), “is a non-starter.”
Wyatt v. United States, 574 F.3d 455, 459 (7th Cir. 2009). He cannot show
ineffective assistance for presuming success in the Supreme Court. Id.
Kimberlin’s attorney was not ineffective.
7 Further, a word about trial counsel’s “affidavit.” Kimberlin attached what

purports to be an affidavit of his trial counsel, which states, in typeface, “Signed . . .
using my digital signature.” (D. 22-6.) But “unsworn documents purporting to be
affidavits may be rejected.” Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985) (citing
28 U.S.C. § 1746; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 n.16 (1970)). The
court should strike the affidavit as inauthentic—not only could the unsigned
affidavit be easily forged, the font and style match pleadings filed by Kimberlin, and
who is not above falsifying documents. (Compare D. 21, with D. 22-6); see 28 U.S.C.
§ 1746; Kimberlin, No. 01-1212. Regardless, attorneys can hardly plead their own
ineffectiveness. See, e.g., Johnston v. Mizell, 912 F.2d 172, 174 (7th Cir. 1990); cf.
Matter of Stanton, 492 N.E.2d 1056 (Ind. 1986), decision clarified, 504 N.E.2d 1
(Ind. 1987) (disbarring Niles Stanton for effectively defrauding clients).
45
E. Kimberlin’s Claims Regarding the Hypnotized Witnesses Have

Already Been Rejected
Kimberlin cannot relitigate the hypnosis of witnesses. (Dkt. 30.) While
witness hypnosis is an anachronistic practice in federal litigation, the Seventh
Circuit already addressed this issue and affirmed Kimberlin’s convictions.
Kimberlin IV, 805 F.3d at 223. That is the end of this matter. 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 Seventh Circuit’s decision in Kimberlin IV is law of the case. Peoples,
403 F.3d at 847. 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.” Id. at 847 (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)).
F. Kimberlin’s § 701 and § 912 Convictions Do Not Violate the First

Amendment
Lastly, Kimberlin’s reliance on Alvarez and Swisher is misplaced. The
government responded substantively previously and incorporates that response
here. (Dkt. 13.) But one point is worth reiterating. Kimberlin was not merely
collecting or wearing some insignia; he was dressed in full DOD regalia:
46
47
He was not exercising his freedom of speech by dressing up for Halloween; instead,
he wore the uniform to fool others into believing he was a government official.
***
Kimberlin’s incessant litigation appears unlikely to abate. Reveling in his
litigiousness, he covets the “continual reexamination of [his] old convictions.” Craig,
907 F.2d at 658; cf. Kimberlin, 2017 WL 3141909, at *1. But he has had his day(s)
in court. This Court should deny his petition—without discovery or a hearing—to
preserve precious judicial, and governmental, resources for “those who have yet to
receive their first decision.” Sloan, 505 F.3d at 698 (citing Keane, 852 F.2d at 204)
(emphasis in Sloan). Because, besides the weakness of Kimberlin’s claims, “no
society can afford forever to question the correctness of its every judgment.”
Withrow v. Williams, 507 U.S. 680, 698 (1993) (O’Connor, J., concurring and
48
dissenting). Enough “is enough.” Peoples, 403 F.3d at 846.
CONCLUSION
Kimberlin is not entitled to the extraordinary remedy provided under § 1651.
This Court should deny his petition for a writ of error coram nobis.
Respectfully submitted,
JOSH J. MINKLER
United States Attorney
By: s/ Brian Reitz

Brian Reitz
49
CERTIFICATE OF SERVICE
I certify that on July 1, 2019, a copy of the foregoing was filed electronically
and that a copy was mailed the next day, by first class U.S. Mail, postage prepaid
and properly addressed to the following:
BRETT KIMBERLIN
8100 Beech Tree Road
Bethesda, MD 20817
s/ Brian Reitz
Brian Reitz
Office of the United States Attorney
10 W. Market St., Suite 2100
Indianapolis, Indiana 46204-3048
Telephone: (317) 226-6333
Fax: (317) 226-6125
E-mail: Brian.Reitz@usdoj.gov
50

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Case 1:18-cv-01141-TWP-MPB Document 37 Filed 07/02/19 Page 1 of 61 PageID #: 226

UNITED STATES DISTRICT COURT

RESPONSE IN OPPOSITION TO PETITION

By: s/ Brian Reitz

STATEMENT OF THE ISSUE ......................................................................... 17

I. Kimberlin’s Coram Nobis Is Barred by Laches ...................................... 19

A. Kimberlin’s Hair Analysis Claim Could Have Been Raised Four

B. Kimberlin’s Claim Regarding Appleby Could Have Been Raised

C. Kimberlin’s Juror Bias Claim Also Could Have Been Raised

D. Kimberlin’s Ineffective Assistance of Counsel Claim Could

E. Kimberlin’s Hypnosis Claim Could Have Been—and Was—

F. Kimberlin’s First Amendment Claim Could Have Been Raised

A. Kimberlin—Not the Government—Introduced the Hair Analysis

1. Kimberlin Invited, and/or Waived, Any Objection to the

2. Kimberlin’s Case Does Not Fit the Criteria for the

3. In All Events, Kimberlin Cannot Show a Napue Violation .... 30

B. Kimberlin Was Not Entitled to Appleby’s File, Which Was Not

C. Kimberlin Cannot Show That the Juror Was Impliedly Biased

1. The Juror In Question Was Too Remotely Connected to the

2. Nor Did the Juror Herself Commit Misconduct ...................... 40

D. Kimberlin’s Attorney Was Not Ineffective ....................................... 43

1. Kimberlin’s Attorney Was Not Deficient ................................. 44

2. Regardless, Kimberlin Suffered No Prejudice ........................ 45

E. Kimberlin’s Claims Regarding the Hypnotized Witnesses Have

F. Kimberlin’s § 701 and § 912 Convictions Do Not Violate the

Cases Page No.

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)....................................................... 47

Allen v. Wright, 468 U.S. 737, 104 (1984) ................................................................... 22

Brady v. Maryland, 373 U.S. 83 (1963) .............................................................. passim

Brecht v. Abrahamson, 507 U.S. 619 (1993) ....................................................... passim

Brogdon v. Butler, 838 F.2d 776 (5th Cir. 1988) ........................................................ 42

Carlisle v. United States, 517 U.S. 416 (1996)............................................................ 18

Commonwealth v. Clark, 528 S.W.3d 342 (Ky. 2017) ................................................ 32

Com. v. Perrot, 2016 WL 380123

Department of Justice and FBI Joint Statement on Microscopic Hair Analysis,

Foont v. United States, 93 F.3d 76 (2d Cir. 1996) ................................................ 17, 24

Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007)........................................... 42

Giglio v. United States, 405 U.S. 150 (1972) ........................................................ 36, 37

Himely v. Rose, 9 U.S. 313 (1809) ............................................................................... 46

Hunley v. Godinez, 975 F.2d 316 (7th Cir. 1992).................................................. 37, 39

International Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215

Irvin v. Dowd, 366 U.S. 717 (1961) ............................................................................. 41

Johnston v. Mizell, 912 F.2d 172 (7th Cir. 1990)........................................................ 45

Jones v. United States, 202 A.3d 1154 (D.C. 2019) ................................................... 32

Kimberlin v. Brewer, 825 F.2d 1157 (7th Cir. 1987) .................................................. 13

Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. 1994) ..................................................... 12

Kimberlin v. Dewalt, 12 F. Supp. 2d 487 (D. Md.)...................................................... 13

Kimberlin v. Frey, No. GJH-13-3059, 2017 WL 3141909

Kimberlin v. Frye, 714 F. App’x 291 (4th Cir. 2018) .................................................. 13

Kimberlin v. McConnell, No. GJH-16-1211, 2016 WL 8667769

Kimberlin v. Quinlan, 251 F. Supp. 2d 47 (D.D.C. 2003)........................................... 13

Kimberlin v. McConnell, 671 F. App’x 128 (4th Cir. 2016) ........................................ 13

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

Kotteakos v. United States, 328 U.S. 750 (1946)......................................................... 33

Lilly v. Gillmore, 988 F.2d 783 (7th Cir. 1993) ........................................................... 45

Long v. State, 689 So.2d 1055 (Fla. 1997) ................................................................... 32

Mastrogiacomo v. United States, No. 90–cr–565 (KTD), 2001 WL 799741

Matter of Stanton, 492 N.E.2d 1056 (Ind. 1986)......................................................... 45

Matter of Stanton, 504 N.E.2d 1 (Ind. 1987)............................................................... 45

McCleese v. United States, 75 F.3d 1174 (7th Cir. 1996) ........................................... 23

Messinger v. Anderson, 225 U.S. 436 (1912) ............................................................... 46

Moskowitz v. United States, 64 F. Supp. 3d 574 (2014) ............................................. 17

Napue v. Illinois, 360 U.S. 264 (1959) ........................................................................ 30