                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-4026
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                             EDMOND N. GAUDELLI, JR.,
                                          Appellant
                                 ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                          (D.C. No. 2-02-cr-00275-001)
                   District Judge: Honorable David S. Cercone
                                ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 31, 2017
                                   ______________

            Before: VANASKIE, KRAUSE and RESTREPO, Circuit Judges.

                                   (Filed: May 1, 2017)
                                     ______________

                                        OPINION *
                                     ______________




       *
         This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
RESTREPO, Circuit Judge.

      Appellant Edmond Gaudelli files this appeal from the District Court’s denial of his

petition for writ of coram nobis. We will affirm.

                                            I

      In 2003, a federal jury convicted Gaudelli of perjury, 18 U.S.C. § 1621, based

upon Gaudelli’s false testimony in a civil deposition. On direct appeal of Gaudelli’s

perjury conviction, this Court summarized the factual history as follows:

             In June 1999, Gaudelli, a police officer with the City of
             Pittsburgh, filed a civil action against his employer and
             several police officers in his department alleging that after he
             had responded to a domestic violence call at the home of
             Chief of Police Robert McNeilly, he was told by his superiors
             to expunge the call from his records. Gaudelli claimed that
             when he tried to “[speak] out about police misconduct and
             harassment and other matters of public concern,” the
             department and its officers retaliated against him in violation
             of his First Amendment right to free speech.

             At his deposition in the case, Gaudelli elaborately detailed
             responding to a domestic violence call at the McNeilly
             residence on September 28, 1996. He stated that a fellow
             officer instructed him not to log the response in his record and
             that other officers confided with him about similar encounters
             at the McNeilly home. Evidence was produced, however,
             contradicting Gaudelli’s claims. McNeilly provided
             documentation that on the day of the alleged call, he and his
             family were vacationing in Florida. Several officers that
             Gaudelli referenced in his story denied his allegations. There
             was no record of such an event in the department’s record-
             keeping system, and the individual who created the system
             stated that a record could not have been expunged from it. In
             light of this evidence, Gaudelli voluntarily dismissed the case.

             Subsequently, Gaudelli was tried for perjury in violation of
             18 U.S.C. § 1621. At trial, the government presented
             evidence that the statements Gaudelli made during his

                                            2
              deposition were false. McNeilly testified that he was in
              Florida on the day that Gaudelli claimed to have responded to
              a call at his home. Several officers testified that Gaudelli had
              fabricated conversations he had alleged in his deposition
              testimony. Gaudelli presented several officers and dispatchers
              who testified that a call did come from the McNeilly
              residence on some unknown date. Ultimately, the jury
              convicted Gaudelli.

United States v. Gaudelli, 134 F. App’x 565, 566-67 (3d Cir. 2005).

       Gaudelli was sentenced to twelve months’ incarceration followed by two years of

supervised release. Id. at 566. Thereafter, we remanded for resentencing under United

States v. Booker, 543 U.S. 220 (2005). Id. Gaudelli was resentenced to twelve months

and one day of incarceration and two years of supervised release. In 2007, the District

Court granted Gaudelli’s motion to terminate his supervised release.

       More than seven years later, in 2014, Gaudelli filed the instant petition for a writ

of coram nobis. Gaudelli contends that newly-discovered witnesses would prove that he

did not commit perjury. Gaudelli also alleges ineffective assistance of counsel, including

the claim that his criminal trial attorney labored under a conflict of interest because he

was seeking an elected position as a judge.

       The District Court denied coram nobis relief on two grounds. First, the District

Court found that Gaudelli failed to prove that he suffers “continuing consequences” of an

allegedly invalid conviction, as required by United States v. Stoneman, 870 F.2d 102, 105

(3d Cir. 1989). Second, the District Court held that Gaudelli did not establish “sound

reasons” for his substantial delay in seeking relief under Stoneman. Id. at 106 (quoting

United States v. Morgan, 346 U.S. 502, 512 (1954)). This timely appeal followed.


                                              3
                                             II

       “The District Court had jurisdiction over the petition under 28 U.S.C. § 1651(a), in

aid of its jurisdiction pursuant to 18 U.S.C. § 3231.” Mendoza v. United States, 690 F.3d

157, 159 (3d Cir. 2012). We have jurisdiction under 28 U.S.C. § 1291. United States v.

Rhines, 640 F.3d 69, 71 (3d Cir. 2011) (per curiam). We review de novo legal errors

arising from the denial of a writ of coram nobis. Id.

                                             III

       The authority to grant a writ of coram nobis arises under the All Writs Act, 28

U.S.C. § 1651(a). Stoneman, 870 F.2d at 105 (citing Morgan, 346 U.S. at 506). A

petition for coram nobis “is used to attack allegedly invalid convictions which have

continuing consequences, when the petitioner has served his sentence and is no longer ‘in

custody’ for purposes of 28 U.S.C.A. § 2255.” Stoneman, 870 F.2d at 105-06. The

remedy of coram nobis is “extraordinary,” and the error must be “of ‘the most

fundamental kind.’” Id. at 106 (quoting United States v. Cariola, 323 F.2d 180, 184 (3d

Cir. 1963)); see also United States v. Denedo, 556 U.S. 904, 911 (2009). “Earlier

proceedings are presumptively correct and the petitioner bears the burden to show

otherwise.” Stoneman, 870 F.2d at 106 (citation omitted). The petitioner must also

establish that “there was no remedy available at the time of trial” and that “‘sound

reasons’ exist for failing to seek relief earlier.” Id. (quoting Morgan, 346 U.S. at 512).

For example, coram nobis relief has been granted based upon extraordinary, newly-

discovered evidence, which could not have been discovered through due diligence.

Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987) (granting coram nobis

                                              4
petition based upon suppressed military report regarding Japanese exclusion orders

during World War II).

       As to Gaudelli, we will assume without deciding that he suffers “continuing

consequences” of his perjury conviction. Stoneman, 870 F.2d at 106. 1 Nevertheless, we

agree with the District Court that there are no sound reasons for his delay in seeking

relief. The “‘sound reason’ standard is even stricter than that used to evaluate” federal

habeas petitions, Mendoza, 690 F.3d at 159, and the availability of the writ is limited to

“extraordinary” cases so that the finality of judgments is not at risk, Denedo, 556 U.S. at

911. Gaudelli’s purported reason for the late filing of his coram nobis petition amounts

to no more than repetition of the same attacks on Police Chief McNeilly that he has

pursued since filing his civil lawsuit in 1999. Gaudelli’s argument is circular. He alleges

that McNeilly retaliated against him. It follows, Gaudelli argues, that his witnesses

would reasonably fear coming forward to assist him. Therefore, Gaudelli concludes, it

took years of investigation for him to prove that his retaliation claims were not perjured.




       1
          The Circuits are split as to whether a court may presume the existence of
collateral consequences from the fact of a conviction for the purposes of a coram nobis
petition. See United States v. George, 676 F.3d 249, 254 (1st Cir. 2012) (collecting
cases). This Court has not definitively ruled on this issue, which we addressed in dicta in
United States v. Osser, 864 F.2d 1056, 1060 (3d Cir. 1988) (declining to presume for
coram nobis purposes that collateral consequences follow a conviction, but noting that
the issue was undisputed by the parties). We need not resolve this issue, as we reject
Gaudelli’s petition on other grounds.

                                             5
The mere repetition of Gaudelli’s debunked allegations does not justify his delay in

seeking relief. 2 As such, his coram nobis petition was properly denied.

                                            IV

      For the foregoing reasons, we will affirm the judgment of the District Court.




      2
         The District Court also noted, and Gaudelli does not dispute, that McNeilly’s
term as Police Chief ended on January 2, 2006. This was more than eight years before
Gaudelli filed his coram nobis petition.
                                            6
