Coram nobis has been considered to be a stage in the underlying criminal case, rather than a new civil action commenced by a pleading in the nature of a complaint or petition.[169]  It can therefore be commenced by a motion in the underlying criminal case, to be placed on the district court’s law and motion calendar.  It should be heard by the court that sentenced the defendant.

 

            In the alternative, the common law procedure was to file a petition for extraordinary relief in the nature of a petition for a writ of error coram nobis, which would follow the same procedure used for the common-law petition for a writ of habeas corpus.

 

The denial of a writ of error coram nobis is reviewed de novo.[170]

 

[169] United States v. Morgan, 346 U.S. 502, 511 (1954).

[170] See Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002); United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989).

POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS AND FEDERAL CORAM NOBIS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES " APPLICABILITY OF CHAIDEZ TO REVIEW OF FEDERAL CONVICTIONS
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) (court failed to reach arguments by Chaidez that Teague's bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when she makes a claim of ineffective assistance, because she did not adequately raise them in the lower courts: [M]indful that we are a court of review, not of first view, the court declined to rule on Chaidez's new arguments); quoting Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).

POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS AND FEDERAL CORAM NOBIS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES " APPLICABILITY OF CHAIDEZ TO REVIEW OF FEDERAL CONVICTIONS
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) (court failed to reach arguments by Chaidez that Teague's bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when she makes a claim of ineffective assistance, because she did not adequately raise them in the lower courts: [M]indful that we are a court of review, not of first view, the court declined to rule on Chaidez's new arguments); quoting Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).

POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS AND FEDERAL CORAM NOBIS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES " APPLICABILITY OF CHAIDEZ TO REVIEW OF INEFFECTIVE ASSISTANCE CLAIMS BECAUSE THEY COULD NOT BE RAISED ON DIRECT APPEAL
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) (court failed to reach argument that new rules may be reached in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal because Chaidez did not raise this argument in the courts below).

POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS AND FEDERAL CORAM NOBIS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES " APPLICABILITY OF CHAIDEZ TO REVIEW OF INEFFECTIVE ASSISTANCE CLAIMS BECAUSE THEY COULD NOT BE RAISED ON DIRECT APPEAL
Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013) (court failed to reach argument that new rules may be reached in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal because Chaidez did not raise this argument in the courts below).

POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS AND FEDERAL CORAM NOBIS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES " APPLICABILITY OF CHAIDEZ TO REVIEW OF FEDERAL CONVICTIONS
Chaidez v. United States, ___ U.S.___, ___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013) (court failed to reach arguments by Chaidez that Teague's bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when she makes a claim of ineffective assistance, because she did not adequately raise them in the lower courts: [M]indful that we are a court of review, not of first view, the court declined to rule on Chaidez's new arguments); quoting Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).

Second Circuit

POST CON RELIEF " FEDERAL " VEHICLES " CORAM NOBIS " TIMELINESS
Chhabra v. United States, __ F.3d __ (2d Cir. Jun. 20, 2013) (federal writ of error coram nobis to vacate conviction on the basis of ineffective assistance of counsel was untimely, and defendant did not establish prejudice, where defendant consulted with an immigration attorney on advice of defense counsel after the plea but before sentencing, and did not thereafter move to withdraw the plea).

Fourth Circuit

POST CON RELIEF " FEDERAL " CORAM NOBIS " STANDARD OF REVIEW OF DENIAL AS ABUSE OF DISCRETION
Akinsade v. United States, 686 F.3d 248 (4th Cir. July 25, 2012) (abuse of discretion is the standard of review of a district courts denial of a writ of error coram nobis without an evidentiary hearing); United States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002); Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (quoting Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996); Santos-Sanchez v. United States, 548 F.3d 327, 330 (5th Cir. 2008), abrogated on other grounds by Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010).

POST CON RELIEF " FEDERAL " CORAM NOBIS " REQUIRED SHOWING
Akinsade v. United States, 686 F.3d 248, *252 (4th Cir. July 25, 2012) (As a remedy of last resort, the writ of error coram nobis is granted only where an error is "of the most fundamental character" and there exists no other available remedy. United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). The writ is narrowly limited to "extraordinary cases presenting circumstances compelling its use to achieve justice." United States v. Denedo, 129 S. Ct. 2213, 2220 (2009) (quoting United States v. Morgan, 346 U.S. 502, 511 (1954)). Thus, the writ provides relief in cases where the error "rendered the proceeding itself irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186 (1979) (internal quotation marks and citation omitted) (superseded by statute on other grounds). A petitioner seeking this relief must show that "(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).).

Sixth Circuit

POST CON RELIEF"FEDERAL"CORAM NOBIS"SUCCESSIVE MOTION BAR
Pilla v. United States, 668 F.3d 368, 372 (6th Cir. Feb. 6, 2012) (petition for writ of coram nobis was not in substance a motion to vacate, and thus was not precluded as second or successive motion to vacate: Here, Pilla was no longer in custody when she filed her petition for a writ of coram nobis, which means her petition is not in substance a motion under 2255. Her petition is therefore not a second or successive motion for relief under that section; and thus we proceed to consider its merits.); see United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) (federal coram nobis was not a motion to vacate under 28 U.S.C. 2255, and thus the one-year AEDPA statute of limitations applicable to 2255 motions did not apply); contra, Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004).

Ninth Circuit

POST CON RELIEF - CORAM NOBIS - NEED TO PETITION FOR CORAM NOBIS DIRECTLY IN FEDERAL COURT
Resendiz v. Kovensky, ___ F.3d ___, ___ & n.3, 2005 WL 1501495 (9th Cir. June 27, 2005) (district court did not commit error in failing to consider 28 U.S.C. 2241 habeas to be a petition for coram nobis, because this issue had not been raised in the district court and petitioner provided no authority suggesting that the district court might have a duty to sua sponte raise the issue), distinguishing United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005), in which the Ninth Circuit held that coram nobis relief was available under similar circumstances, because here the petitioner did not file coram nobis in the district court). The court in Resendiz rejected a claim that the district court should have sua sponte construed the petition as a petition for coram nobis, instead of habeas corpus: "Resendiz argues that the district court should not have construed his petition as one under 2241, but instead should have construed it as a writ of coram nobis, even though Resendiz never asked the court to do so. Because Resendiz did not contend below that his petition should be construed as a writ of coram nobis, and because he provides no authority suggesting that the district court might have a duty to sua sponte raise the issue, we decline to address this claim. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.1992) ("As a general rule, an appellate court will not hear an issue raised for the first time on appeal."). In footnote 3 to this quotation, the Resendiz court stated: "Our recent decision in United States v. Kwan, No. 03-50315, 2005 WL 1119652 (9th Cir. May 12, 2005), in which we held that coram nobis relief was available under similar circumstances, does not affect our decision. Unlike Kwan, Resendiz did not petition the district court for the writ of coram nobis, but argued instead that the court should have so construed his habeas petition sua sponte."

POST CON RELIEF - FEDERAL -- CORAM NOBIS - STATUTE OF LIMITATIONS - AEDPA STATUTE OF LIMITATIONS FOR 2255 RELIEF DID NOT APPLY TO CORAM NOBIS
United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (one-year AEDPA statute of limitations for filing a motion to vacate a judgment under 28 U.S.C. 2255 did not apply to the filing of a petition for a writ of error coram nobis after custody had expired in the federal criminal case).

Other

PRACTICE ADVISORY " POST CON RELIEF " FEDERAL " VEHICLES "CORAM NOBIS " GENERAL STANDARD " NINTH CIRCUIT
I. General Standard For Federal Coram Nobis Relief In The Ninth Circuit Coram nobis relief is available to challenge the validity of a conviction, even though the sentence has been fully served, under circumstances compelling such action to achieve justice. United States v. Morgan, 346 U.S. 502, 511 (1954). It fills a void in the availability of post-conviction remedies in federal criminal cases, Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985), providing petitioners who have been released from custody an opportunity to challenge convictions for errors of fact . . . in those cases where the errors [are] of the most fundamental character, that is, such as rendered the proceeding itself invalid. Hirabayashi v. United States, 828 F.2d 591, 604 (1987). To qualify for coram nobis relief, four requirements must be satisfied: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. United States v. Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007) (quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987)). Both the Ninth Circuit and the U.S. Supreme Court have reiterated that the writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable. Riedl, 496 F.3d at 1006; see also United States v. Morgan, 346 U.S. 502, 511 (1954) (characterizing the writ as an extraordinary remedy that should be granted only under circumstances compelling such action to achieve justice.); Carlisle v. United States, 517 U.S. 416, 429 (1996) ([I]t is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate.) (quoting United States v. Smith, 331 U.S. 469, 475 n. 4 (1947)) (second alteration in original); Hirabayashi, 828 F.2d at 604 (describing the writ as extraordinary); Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002) (noting that the writ is used only to review errors of the most fundamental character . . . .); Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (the writ fills a very precise gap in federal criminal procedure.). II. Due Diligence The second requirement"that valid reasons exist for not attacking the conviction earlier"is the ground most frequently used by the courts to deny coram nobis relief. Though there is no specific statute of limitations on a coram nobis petition, courts require petitioners to provide valid or sound reasons explaining why they did not attack their sentences or convictions earlier. See Morgan, 346 U.S. at 512; United States v. Kwan, 407 F.3d 1005, 1013 (9th Cir. 2005). In numerous cases, both reported and unreported, the Ninth Circuit has denied coram nobis relief based on the fact that the petitioner failed to demonstrate that a valid reason existed for not challenging the conviction earlier. The Ninth Circuit does not require petitioners to challenge convictions at the earliest possible opportunity, provided that they can present a reasonable explanation for their decision not to challenge the conviction earlier. Kwan, 407 F.3d at 1014. The Ninth Circuit has considered delay to be reasonable when the applicable law was recently changed and made retroactive, see United States v. Walgren,885 F.2d 1417, 1421 (9th Cir. 1989), when new evidence was discovered that the petitioner could not reasonably have located earlier, see Hirabayashi, 828 F.2d at 605, and when the petitioner was improperly advised by immigration counsel not to pursue habeas relief, see United States v. Kwan, 407 F.3d 1005, 1013 (9th Cir. 2005). However, there are some cases where, without any explanation for the delay in the record, the Ninth Circuit has granted coram nobis relief. See United States v. Tucor Intl, Inc., 189 F.3d 834, 836"38 (9th Cir. 1999) (granting coram nobis relief even though the petitioner waited four years after pleading guilty to file the coram nobis petition and petitioner could have, but did not, raise the same claim at the time of conviction). There is no clear definition of a valid reason for failing to attack the conviction. However, courts have denied coram nobis when the petitioner has delayed for no reason whatsoever, if the respondent demonstrates a strong showing of prejudice, or where the claim could have been raised in the trial or on direct appeal. See id. Specifically, the Ninth Circuit has rejected coram nobis petitions as untimely when the petitioner took 25 years to challenge an undesirable army discharge that he had not previously tried to upgrade, see Maghe v. United States, 710 F.2d 503, 503-04 (9th Cir.1983); when the petitioners diminished capacity and deportation negatively impacted her ability to find competent counsel willing to pursue more timely post-conviction relief, see Riedl, 496 F.3d at 1005; when the petitioner waited twenty months to four years before filing a coram nobis petition, see id., United States v. Njai, 2009 WL 464184 (9th Cir. 2009); when the petitioner blamed a delay on a serious of medical problems and ineffective assistance of counsel, see Martinez v. United States, 2001 WL 700542 (9th Cir. 2001); and when the petitioner waited 16 years to relitigate a claim that had been raised and then dropped on direct appeal, see United States v. Correa-De Jesus, 708 F.2d 1283, 1284-86 (7th Cir.1983). Courts will not grant a petition for coram nobis relief if it is premised on claims that could have been raised during trial, on appeal, or through a 28 U.S.C. 2255 petition. See Riedl, 486 F.3d at 1006. III. Laches The requirement that the petitioner demonstrate due diligence is distinct from the equitable doctrine of laches. Laches constitutes a supplemental defense that the government may invoke when a petitioner seeks coram nobis relief. Riedl, 496 F.3d at 1006. To prove laches, the government must first make a prima facie showing of prejudice as a result of delay. Then, if the government meets its burden, the burden of production of evidence shifts to the petitioner to show either that the government was not prejudiced or that the petitioner exercised reasonable diligence in filing the claim. See Telink, 24 F.3d at 48. A strong showing of due diligence will, therefore, rebut the defense of laches. See Hirabayashi, 828 F.2d at 605 (rejecting argument that coram nobis petition should be denied on the ground of laches because petitioners reasons for delaying were reasonable). Because a petition for writ of error coram nobis is a collateral attack on a criminal conviction, the time for filing a petition is not subject to a specific statute of limitations. See Telink, 24 F.3d at 45. Unlike a limitations period, which bars an action strictly by time lapse, laches bars a claim only if unreasonable delay causes prejudice to the defendant. Ibid.; see also Holmberg v. Armbrecht, 327 U.S. 392, 296 (1946). A petitioner may not use the absence of prejudice to the defendant as a means of overcoming the petitioners failure to attack the conviction at an earlier date. Riedl, 496 F.3d at 1004. That is, even if the defendant cannot raise the defense of laches, the petitioner must still prove that there exists a valid reason for not challenging the conviction at an earlier time. In addition, the government could argue the defense of laches based on the fact that trial counsel, Thomas Moran, is since deceased. In Telink, Inc. v. United States, 24 F.3d at 48, the government successfully argued the defense of laches where, during the delay in time from the direct appeal to the post-conviction petition, a potential government witness had died. The court noted that but for the petitioners delay, the government would have preserved its case . . . and Mr. St. Pierre might have been alive to testify. Ibid. See also Klein v. United States, 880 F.2d 250, 254 (10th Cir. 1989) (petitioner delayed seeking coram nobis relief for seven years without any explanation; delay caused prejudice to the government because key witnesses died). There are some coram nobis cases where the government failed to raise the due diligence requirement and petitioners were able to escape the need affirmatively to prove diligence. See United States v. Tucor Intl, Inc., 189 F.3d at 836"38; Rewak v. United States,512 F.2d 1184, 1185 (9th Cir.1975) (granting coram nobis petition for sentencing error ten years after petitioner was released from custody). However, those cases are far less common than the vast majority in which the government and the court demand a detailed and well-substantiated explanation for the delay.

POST CON RELIEF - FEDERAL - CORAM NOBIS
May v. People of Guam, 2005 Guam 17, 2005 WL 2654274 (Oct. 18, 2005) (trial court erred in failing to recharacterize a habeas corpus petition, filed after custody had expired, as a petition for a writ of error coram nobis, but error was harmless since coram nobis would have been properly denied because it was presented too late, over 24 years after the conviction occurred, with no valid explanation for the delay).