No.

22-124

IN THE
Supreme Court of the United States
_______________________

BRETT KIMBERLIN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
_______________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh
Circuit
_______________________

BRIEF OF RIGHTS BEHIND BARS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER
_______________________

SAMUEL WEISS
Counsel of Record
RIGHTS BEHIND BARS
416 Florida Avenue, NW
#26152
Washington, DC 20001
(202) 455-4399
[email protected]
Counsel for Amicus Curiae
 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
STATEMENT OF INTEREST ................................... 1
SUMMARY OF THE ARGUMENT ........................... 1
I. ISSUES OF CAUSATION AND TIMELINESS
RENDER THE CIVIL DISABILITY
REQUIREMENT FUNDAMENTALLY
UNWORKABLE................................................... 2
II. THIS COURT’S ABDICATION OF CORAM
NOBIS HAS ALLOWED LOWER COURTS TO
INVENT OTHER OBSTACLES TO THE
RIGHT. ................................................................. 9
CONCLUSION ......................................................... 11

(i)
 ii
TABLE OF AUTHORITIES
Page(s)

Cases

Baranski v. United States,

880 F.3d 951 (8th Cir. 2018) ................................... 9

Evitts v. Lucey,
469 U.S. 387 (1985) ............................................. 5, 6

Magwood v. Patterson,
561 U.S. 320 (2010) ............................................... 10

Meachum v. Fano,
427 U.S. 215 (1976) ................................................. 4

Ohler v. United States,

529 U.S. 753 (2000) ................................................. 5

Rebrook v. United States,

No. 2:10-cv-01009, 2012 WL 10270158, (S.D.W. Va.
Jan. 5, 2012) .......................................................... 10

Stack v. Boyle,
342 U.S. 1 (1951) ..................................................... 2

United States v. Castano,

906 F.3d 458 (6th Cir. 2018) ................................... 6

United States v. George,

676 F.3d 249 (1st Cir. 2012) ................................... 8

United States v. Lambert,

984 F.2d 658 (5th Cir. 1993) ................................... 6
 iii

United States v. Mandel,

862 F.2d 1067 (4th Cir. 1988) ................................. 8

United States v. Osser,

864 F.2d 1056 (3d Cir. 1988) ................................ 10

United States v. Peter,

310 F.3d 709 (11th Cir. 2002) ................................. 8

United States v. Salerno,

481 U.S. 739 (1987) ................................................. 2

Wisconsin Central Ltd. v. United States,

138 S. Ct. 2067 (2018) ........................................... 10

Woodford v. Garceau,
538 U.S. 202 (2003) ................................................. 9
Statutes

18 U.S.C. § 3142.......................................................... 3
Other Authorities

Ginger Jackson-Gleich, “Rigging the jury: How each

state reduces jury diversity by excluding people
with criminal records,” Prison Policy Institute
(Feb. 19, 2021) ......................................................... 7

Gordon Van Kessel, Adversary Excesses in the

American Criminal Trial, 67 Notre Dame L. Rev.
403 (1992) ................................................................ 5

James Austin, Objective Jail Classifications: A Guide

for Jail Administrators, Nat’l Inst. of Corrections
(1998) ....................................................................... 4
 iv

Katherine Hood and Daniel Schneider, “Bail and

Pretrial Detention: Contours and Causes of
Temporal and County Variation,” RSF: Russell
Sage Foundation Journal of the Social Sciences,
vol. 5, no. 1 (Feb. 2019) ........................................... 3

Ovetta Wiggins, “Maryland bill would allow people

convicted of felonies to serve on juries,” Wash. Post
(Feb. 20, 2022) ......................................................... 7

Timothy Schnacke, Michael Jones, and Claire

Brooker, “The History of Bail and Pretrial
Release,” Pretrial Justice Institute (Sept. 24, 2010)
................................................................................. 3

U.S. Comm’n on Civil Rights, The Civil Rights

Implications of Cash Bail (2022) ............................ 2
 STATEMENT OF INTEREST
Rights Behind Bars (RBB)1 legally advocates for
people in prison to live in humane conditions. RBB
also contributes to a legal ecosystem in which such
advocacy is more effective and seeks to create a world
in which people in prison do not face large structural
obstacles to advocating for themselves in the courts.
RBB helps incarcerated people advocate for their own
interests more effectively and through such advocacy
pushes towards a world in which people in prison are
treated humanely.
SUMMARY OF THE ARGUMENT
The Seventh Circuit denied the coram nobis writ
to a petitioner because he failed to meet the civil
disability requirement, one that finds no basis in this
Court’s precedent.
Problems with both causation and timeliness
render the civil disability requirement dysfunctional.
First, many civil disabilities are the result of
amorphous processes in which past convictions are
potentially or even likely determinative but
petitioners are unable to conclusively demonstrate a
causal relationship. Second, problems of timeliness
will often render the writ moot, as petitioners cannot
bring the writ until they suffer a civil disability but

1 Pursuant to Supreme Court Rule 37.6, Amicus Curiae affirms

that no counsel for any party authored this brief in whole or in
part, and no counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief. No
person other than Amicus Curiae, its members, or its counsel
made a monetary contribution to its preparation or submission.

(1)
 2
cannot practically obtain the writ in time to redress
those injuries.
The civil disability requirement is not the only
procedural obstacle that some lower courts have
thrown up concerning access to the writ, resulting in
both inconsistent law across circuits and barriers to
use of the writ that this Court’s precedent does not
support. This Court’s silence on the coram nobis writ
has allowed as much. A particularly troubling trend is
lower courts applying recent statutory limits on
habeas corpus to coram nobis, which is out of step with
this Court’s well-established approach to statutory
interpretation.
I. ISSUES OF CAUSATION AND
TIMELINESS RENDER THE CIVIL
DISABILITY REQUIREMENT
FUNDAMENTALLY UNWORKABLE.
Coram nobis petitioners often have the writ
stymied for one of two reasons, even when their claims
are meritorious. First, petitioners are unable to
demonstrate causation, as most civil disabilities flow
from amorphous decision-making processes. Second,
petitioners cannot seek the writ until they suffer from
a “civil disability,” but cannot practically obtain the
writ in time to redress their injury, making their
claim moot. A non-exhaustive tour through some of
the many “civil disabilities” that those like Kimberlin
experience demonstrates how the requirement blocks
access to the writ.
Bail
On any given day, approximately 500,000 people
are incarcerated in United States jails despite being
legally innocent because they cannot pay, or were not
 3
granted the opportunity to pay, cash bail. U.S.
Comm’n on Civil Rights, The Civil Rights Implications
of Cash Bail 23 (2022). Although the use of bail was
permitted only to ensure presence at trial for most of
American history, see Stack v. Boyle, 342 U.S. 1, 5
(1951), the 1984 Bail Reform Act allowed pretrial
incarceration solely on the basis of future
dangerousness, and in 1987 this Court upheld this
provision as constitutional, see United States v.
Salerno, 481 U.S. 739, 746 (1987). In the following
decade, most states and the District of Columbia
responded to this Court’s ruling by altering their bail
statutes to regulate future dangerousness in addition
to flight risk. Timothy Schnacke, Michael Jones, and
Claire Brooker, “The History of Bail and Pretrial
Release,” Pretrial Justice Institute 18 (Sept. 24, 2010).
Social science confirms that people with prior
convictions for violent felonies are more likely to be
denied bail. Katherine Hood and Daniel Schneider,
“Bail and Pretrial Detention: Contours and Causes of
Temporal and County Variation,” RSF: Russell Sage
Foundation Journal of the Social Sciences, vol. 5, no.
1 (Feb. 2019). The decision, however, to deny bail
typically relies on numerous variables, such as the
nature and circumstances of the current charges, the
strength of the prosecution’s evidence against the
defendant, any history with substance abuse,
employment, and family ties. See, e.g., 18 U.S.C. §
3142. As a result, even though past convictions are a
quintessential reason to deny bail, a judge who does
so with a petitioner like Kimberlin has no reason to
engage in the counterfactual of whether, absent the
convictions, he would have received bail. So despite
likely being incarcerated because of his convictions,
 4
Kimberlin would be unable to demonstrate as much to
meet the civil disability requirement.
Finally, even were the judge to take the unusual
step of noting that Kimberlin’s bail was denied
because of the validity of his convictions, he would still
likely be unable to access the writ because of timing
issues. Upon being denied bail, Kimberlin would for
the first time have standing to bring a coram nobis
petition from his jail cell, but the petition would be
unlikely to reach resolution before his criminal case
went to trial or he reached a plea deal, either of which
would moot the relief he sought.
Prison and jail classification systems
The validity of convictions influences not only who
remains in jail but also the conditions that they
experience, both pre-trial and post-conviction. Prisons
and jails have moved to objective classification
systems that determine a security level through
objective metrics such as severity of offense, prior
convictions, prior incarcerations, and age. See, e.g.,
James Austin, Objective Jail Classifications: A Guide
for Jail Administrators, Nat’l Inst. of Corrections 1
(1998). The classification level then helps determine
whether a detainee or prisoner is eligible for jobs,
educational programming, visitation with family,
time outdoors, the amount of violence and sexual
violence in their housing unit, the opportunity to
exercise, and other variables that dictate how
rehabilitative or traumatic their experience of
incarceration is.
Despite classification largely dictating a detainee
or prisoner’s experience, detainees and prisoners have
no substantive right to being housed at a particular
classification level or even a procedural due process
 5
right in determining their classification. See
Meachum v. Fano, 427 U.S. 215, 228 (1976). The
result is that detainees and prisoners typically have
no information explaining or justifying their
classification status. Consequently, they would likely
have no knowledge that past, invalid convictions
resulted in higher security classifications, preventing
them from demonstrating causation on a coram nobis
writ.

Testifying at trial
As Kimberlin explained in his petition for
certiorari, this Court has long presumed that
convictions carry collateral consequences, writing in
Evitts v. Lucey that “some collateral consequences of
petitioner’s conviction remain, including the
possibility that the conviction would be used to
impeach testimony … in a future proceeding.” 469
U.S. 387, 391 n.4 (1985). Federal Rule of Evidence 609
renders certain criminal convictions admissible to
impeach the trustworthiness of a witness, although,
critically, not if a judicial proceeding has invalidated
the conviction. Petitioners like Kimberlin could be
impeached not just in future criminal cases but also
in any civil cases that arise—for instance, if they were
injured by a faulty product or were defrauded by a
payday lender.
Demonstrating causation would again be difficult
or impossible. Prejudice is not an on-off switch:
different convictions are prejudicial to different
extents, and violent convictions like Kimberlin’s are
particularly powerful. Critically, most criminal
defendants with felony convictions do not suffer the
prejudice of impeachment because they choose to not
 6
testify at all rather than endure the introduction of
evidence about their past convictions. Gordon Van
Kessel, Adversary Excesses in the American Criminal
Trial, 67 Notre Dame L. Rev. 403, 482 (1992) (noting
that “[t]he threat of felony conviction impeachment
can be a powerful deterrent to taking the witness
stand” and citing empirical evidence that “a defendant
[i]s almost three times more likely to refuse to testify
if he ha[s] a criminal record than if not”); Ohler v.
United States, 529 U.S. 753, 759 (2000) (recognizing
that potential use of prior convictions as impeachment
“may deter a defendant from taking the stand”).
Once again, timing issues would also arise. By the
time a petitioner was certain that she would be
testifying and that her conviction would be used to
impeach her, the writ would no longer be of use—the
length of time between obtaining standing under the
civil disability requirement and when the issue would
become moot is too short.
Enhanced sentencing
This Court has also presumed that convictions
carry collateral consequences in the context of
sentencing enhancements. See Evitts, 469 U.S. at 391
n.4. Along with the severity of offense, criminal
history is the decisive variable in criminal sentencing.
See, e.g., United States v. Lambert, 984 F.2d 658, 660
(5th Cir. 1993) (“Sentencing under the guidelines is
based primarily on the evaluation of two variables:
the offense level and the defendant’s criminal history
score.”). Outside the context of past convictions
triggering mandatory minimums, however,
petitioners will struggle to demonstrate causation
because it will be unclear when a past conviction was
decisive in influencing a sentence. The Sixth Circuit
 7
for example, recently wrote that even when a past
conviction appears in a presentence investigation
report and forms the basis for a recommendation of a
sentencing enhancement, the petitioner still may not
be able to demonstrate causation to meet the civil
disability requirement because of the “vast discretion”
of the sentencing judge. United States v. Castano, 906
F.3d 458, 463 (6th Cir. 2018). There are also yet again
timing issues, with petitioners obtaining standing to
bring a coram nobis petition upon being convicted but
needing to obtain relief before their sentencing.
Serving on a jury
Past and invalid convictions can also prevent
people like Kimberlin from serving on a jury.
Kimberlin raised this argument in the district court,
which agreed with him but still held that he faced no
civil disability because his other convictions for
marijuana possession and perjury also prevented him
from serving on a jury. The court’s reasoning,
however, depends on Kimberlin’s current state of
residence, Maryland, and its current jury exclusion
statute. Either could change. Just this year,
legislation passed the Maryland House of
Representatives and Senate that eliminated the
exclusion from juries of those convicted felonies, and
the debate around the bill centered on whether
particularly troublesome felonies would still merit
exclusion. Ovetta Wiggins, “Maryland bill would allow
people convicted of felonies to serve on juries,” Wash.
Post (Feb. 20, 2022). Similarly, were Kimberlin to
move to Alabama, which excludes only those convicted
of “crimes of moral turpitude” instead of all felonies,
his challenged convictions alone might make him
ineligible to serve on a jury. Ginger Jackson-Gleich,
“Rigging the jury: How each state reduces jury
 8
diversity by excluding people with criminal records,”
Prison Policy Institute (Feb. 19, 2021). Although
changes in either Maryland law or his residence could
grant Kimberlin the opportunity to seek relief under
a coram nobis petition, he would be excluded from jury
service for the length of time it would take for him for
the petition to reach a resolution.
***
The list above is far from exhaustive and
demonstrates two significant points about the civil
disability requirement, one that the federal courts of
appeals on the correct side of the civil disability split
have articulated well. First, a presumption of civil
disability will almost always be correct given the
countless and ever-changing ways that the law
formally disadvantages those with convictions. United
States v. Peter, 310 F.3d 709, 715–16 (11th Cir. 2002)
(quoting Spencer v. Kemna, 523 U.S. 1, 12 (1998)) (“[I]t
is an obvious fact of life that most criminal convictions
do in fact entail adverse collateral legal
consequences.”) (internal quotations omitted). Second,
even when the law imposes severe civil disabilities,
complications involving causation and timeliness will
often render the coram nobis writ practically useless.
United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir.
1988) (“Conviction of a felony imposes a status upon a
person which … makes him vulnerable to future
sanctions through new civil disability statutes.”). The
civil disability requirement is a solution in search of a
problem, and its introduction prevents many of those
suffering from grave civil disabilities from practical
use of the writ.
 9
II. THIS COURT’S ABDICATION OF CORAM
NOBIS HAS ALLOWED LOWER COURTS
TO INVENT OTHER OBSTACLES TO THE
RIGHT.
“The metes and bounds of the writ of coram nobis
are poorly defined and the Supreme Court has not
developed an easily readable roadmap for its
issuance.” United States v. George, 676 F.3d 249, 253
(1st Cir. 2012). As a result, “the courts of appeals have
not yet developed anything resembling a uniform
approach to such relief.” Id. at 254. As described
above, the case law on the civil disability requirement
is “uneven,” and this split “over the collateral
consequences requirement is emblematic of a more
general lack of jurisprudential uniformity.” Id.

Much of this lack of uniformity is the result of

lower courts taking this Court’s silence on corum
nobis as an invitation to invent procedural obstacles
to the writ which are not based in statutory text or
this Court’s precedent. Although courts typically
justify these creations by invoking the extraordinary
nature of the writ, see Baranski v. United States, 880
F.3d 951, 956 (8th Cir. 2018), the substantive
standard for coram nobis already reflects the unusual
nature of the writ. The appropriate deference to
finality is therefore already baked into the
substantive standard and need not be duplicated
through the creation of additional procedural hurdles.
One particularly troublesome example involves
the application of the Anti-Terrorism and Effective
Death Penalty Act (AEDPA) to the coram nobis writ.
“Congress enacted AEDPA to reduce delays in the
execution of state and federal criminal sentences,
 10
particularly in capital cases.” Woodford v. Garceau,
538 U.S. 202, 206 (2003). Some courts have responded
to AEDPA by reading the same limitations it imposes
on habeas corpus onto coram nobis, despite the fact
that AEDPA is silent on the latter.
For example, in Baranski, the Eighth Circuit noted
that AEDPA changed the standard for a miscarriage
of justice exception for successive habeas petitions
from “more likely than not” to “clear and convincing
evidence.” 880 F.3d 951, 955 (8th Cir. 2018). The court
applied the same substantive change to a coram nobis
petition, noting that “custody is the only substantive
difference between coram nobis and habeas petitions”
and concluding that “it would make no sense to rule
that a petitioner no longer in custody may
obtain coram nobis relief with a less rigorous
substantive showing than that required
by AEDPA’s limitations for successive habeas corpus
… relief.” Id. at 956.
Other courts have adopted rules governing
procedural default from the habeas context, meaning
that if petitioners have failed to make earlier attempts
at voiding their convictions, they may no longer bring
a claim for coram nobis. See United States v. Osser,
864 F.2d 1056, 1060–62 (3d Cir. 1988); Rebrook v.
United States, No. 2:10-cv-01009, 2012 WL 10270158,
at *26 (S.D.W. Va. Jan. 5, 2012), report and
recommendation adopted, No. 2:10-cv-1009, 2014 WL
555283 (S.D.W. Va. Feb. 11, 2014), aff’d, 589 F. App’x
130 (4th Cir. 2014).
This application of AEDPA—or the pre-AEDPA
habeas statute—to coram nobis arises from an
outdated method of statutory interpretation. This
Court now interprets statutes according to their plain
 11
text, without speculation as to what else Congress
may have intended to accomplish. Wisconsin Central
Ltd. v. United States, 138 S. Ct. 2067, 2073 (2018) (“It
is not our function to rewrite a constitutionally valid
statutory text under the banner of speculation about
what Congress might have intended.”) (internal
quotation marks omitted); Magwood v. Patterson, 561
U.S. 320, 334 (2010) (“We cannot replace the actual
text with speculation as to Congress’ intent.”).
AEDPA amended the habeas statute and did not
amend the All Writs Act, the latter being the statutory
basis for the ancient common law writ of coram nobis.
AEDPA is therefore not a basis to restrict coram nobis
but instead the opposite—a reason not to. This Court
presumes that Congress would have amended the
coram nobis writ in AEDPA had it intended to do so
without speculating about whether “it would make no
sense” for Congress to do what, per the plain language
of AEDPA, it did.
CONCLUSION
For the foregoing reasons and those in the petition,
the Court should grant the petition for certiorari.
Respectfully submitted,

SAMUEL WEISS
RIGHTS BEHIND BARS
416 Florida Avenue, NW
#26152
Washington, DC 20001
(202) 455-4399
[email protected]
Counsel for Amicus Curiae

September 6, 2022