United States of America v. Gary E. Peel

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 22, 2023 *
Decided March 23, 2023
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2616
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARY E. PEEL,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 06-cr-30049-SMY
Staci M. Yandle,
Judge.
O R D E R
Gary Peel appeals the denial of his petition to vacate his criminal convictions
through the esoteric writs of coram nobis and audita querela. We agree with the district
court that Peel is impermissibly attempting to relitigate issues presented in previous
collateral attacks, and we therefore affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-2616 Page 2
In 1974, Peel took sexually explicit photographs of his then-wife’s 16-year-old
sister. Decades later, Peel and his wife divorced, and he filed for bankruptcy. Peel’s ex-
wife opposed his efforts to alter a roughly $750,000 obligation to her under their divorce
settlement, and she filed an adversarial proceeding in the bankruptcy case. Peel then
threatened to make the photos of her sister public if she did not drop her claim. This
brought on federal charges.
A jury found Peel guilty of bankruptcy fraud and obstruction of justice for his
attempt to extort concessions in the bankruptcy case, see 18 U.S.C. §§ 152(6), 1512(c)(2),
and two counts of possessing child pornography for retaining the explicit photos,
id. § 2252A(a)(5)(B). Peel appealed, and we agreed that the conviction for either
obstruction of justice or bankruptcy fraud had to be dismissed because dual
punishments for the same unlawful threat violated the Double Jeopardy Clause. United
States v. Peel, 595 F.3d 763, 767 (7th Cir. 2010). But we affirmed Peel’s convictions and
sentences for possessing child pornography, rejecting his argument that he was
innocent because having sexually explicit photos of a minor did not violate federal law
when he took them. Id. at 769–71.
On remand, the district court dismissed the obstruction-of-justice conviction and
imposed the same total prison sentence of 144 months. In his appeal, Peel again insisted
that he was not guilty of possessing child pornography because of the absence of
federal prohibition at the time he took the photos. We rejected that argument and
affirmed. United States v. Peel, 668 F.3d 506, 509–10 (7th Cir. 2012).
Beginning in 2011, before the second appeal was final, Peel filed a string of
unsuccessful motions to vacate his convictions. In his first proper motion under
28 U.S.C. § 2255, he raised dozens of arguments, including that his convictions were
unlawful because (1) possessing child pornography was not federally illegal in 1974;
(2) his ex-wife had filed, then later withdrawn, a fraudulent adversarial claim in the
bankruptcy case; and (3) his trial and appellate counsel were constitutionally ineffective
for failing to raise these arguments. The district court rejected Peel’s assertions,
explaining that possessing the photographs was illegal no matter when they were
taken, his ex-wife never withdrew her bankruptcy objections, and the merits of her
claim were irrelevant to Peel’s fraud. Peel v. United States, No. 06-CR-30049-WDS, 2013
WL 1799040 (S.D. Ill. Apr. 29, 2013). While in federal custody, Peel repeated the same
arguments in many other motions, variously styled, and a petition under § 2241 and
§ 2255(e), all of which were denied on the merits or dismissed for lack of jurisdiction.

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No. 22-2616 Page 3
Then, after serving his prison sentence and three years of supervised release, Peel
returned to federal court seeking the rare writs of coram nobis and audita querela. A
petition for a writ of coram nobis is a means to collaterally attack a criminal conviction
when a defendant is no longer in federal custody. United States v. Delhorno, 915 F.3d 449,
452 (7th Cir. 2019). And a writ of audita querela might in rare cases provide relief based
on some defense arising after the imposition of the judgment. United States v. Johnson,
962 F.2d 579, 582 (7th Cir. 1992). Though he invoked these new procedural vehicles,
Peel presented the same arguments he had raised in his direct appeals and prior
collateral attacks: he lawfully took explicit photos of a 16-year-old, his ex-wife’s actions
in the bankruptcy proceeding undermine his fraud conviction, and his lawyers were
ineffective for failing to raise these issues before his convictions were final.
The district court denied the petition, rejecting each argument in turn. First, Peel
did not have new evidence, and his arguments had already been made, and rebuffed,
several times. Second, he possessed child pornography as late as 2006, well after the
pertinent statute was passed (1978) and amended to define “minor” as anyone under
age 18 (1984). Third, Peel already raised his ineffective assistance of counsel claims
numerous times. Peel timely moved for reconsideration, repeating the arguments from
his petition, but the court concluded that his assertions of legal error were groundless.
On appeal, Peel argues that the district court erroneously refused to vacate his
convictions or at least hold evidentiary hearings. Once again, he repeats his three
primary arguments. (They are not specific to the denial of his motion to reconsider, so
we do not address that ruling separately. See White v. United States, 8 F.4th 547, 552
(7th Cir. 2021).) None of Peel’s arguments justifies the relief he seeks.
A writ of coram nobis is reserved for “extraordinary cases” 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 earlier relief’;
and (3) ‘the defendant continues to suffer from his conviction even though he is out of
custody.’” Delhorno, 915 F.3d at 452–53 (citation omitted). But a coram nobis petition
cannot be used to relitigate issues already raised under § 2255 and rejected. United States
v. Hassebrock, 21 F.4th 494, 498 (7th Cir. 2021). That is all Peel attempts to do here.
The obscure writ of audita querela also has no role here. As we have said before,
we question whether, “given the availability of coram nobis and § 2255,” this writ has
any relevance to criminal proceedings. Johnson, 962 F.2d at 583. If anything, it might
“plug a gap in a system of federal postconviction remedies.” United States v. Kimberlin,

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No. 22-2616 Page 4
675 F.2d 866, 869 (7th Cir. 1982). But there is no gap here. Peel could—and did—raise
the same arguments in his collateral attacks.
We caution Peel that further attempts to relitigate his convictions could result in
sanctions.
AFFIRMED

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