As the Ninth Circuit has summarized:

 

a petitioner must show the following to qualify for coram nobis relief: (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.[171]

 

These four criteria are described in more detail as follows:

 

(1)       The fact that the defendant is no longer in actual or constructive custody in regard to the offense of conviction renders the “more usual remedy” — a motion for habeas corpus relief under 28 U.S.C. § 2255 — “not available.”[172]

 

A petitioner still in “custody,” even if only through supervised release, cannot utilize coram nobis because habeas corpus relief is available.  This is true even if the AEDPA statute of limitations has run and habeas corpus relief is thereby precluded.[173]  In such a circumstance, the petitioner should simply wait to file a coram nobis petition until custody has expired and habeas jurisdiction has ceased to exist.

 

(2)       It is often the case that the conviction was not attacked earlier because the defendant did not receive competent legal advice at the time of the conviction, and had no hint either of its defective nature or its drastic, hidden consequences until he retained new counsel after being detained and placed in removal proceedings, only shortly before the petition was filed.[174]

 

To gain relief in coram nobis, a petitioner must also show an absence of delay, i.e., that there are valid reasons why petitioner did not attack the conviction earlier.[175]  There is no requirement that the government must have been prejudiced by the delay, as is normally the case with respect to the defense of laches.  Rather, in this context, courts dismiss belated coram nobis petitions upon a finding of inexcusable delay.

 

(3)       In most cases, the controversy is certainly not “moot.”  While there is a real question as to whether having a felony conviction on one record can ever be considered to be a matter without adverse consequences,[176] it is sufficient that the collateral consequences for the defendant’s immigration status render it a “live case or controversy that is likely to be redressed by a favorable judicial decision.”[177]  See § 5.38, supra.

 

(4)       There must have been “error of a fundamental nature” in the judgment of conviction.

 

It is important to ensure these requirements can be met before filing a coram nobis petition in federal court.[178]

 

Any ground of fundamental error, resulting in legal invalidity of the conviction, can be raised by coram nobis petition.  For example, a recent case validated the petition as a vehicle by which to raise the following errors: (1) ineffective assistance of counsel for (a) failure to move for suppression of

unconstitutionally seized evidence, (b) failure to move for severance, (c)

failure to advise against self-incrimination, (d) failure to advise of

deportation as a consequence of conviction, (e) failure to request a

judicial recommendation against deportation; and (2) violation of the Vienna

Convention.[179]  The court stated: “The writ of error coram nobis ‘will issue only to correct errors resulting in a complete miscarriage of justice.’”[180]

 

[171] Hirabayashi, 828 F.2d at 604 (footnote omitted); but see United States v. Tucor Intern., Inc., 189 F.3d 834 (9th Cir. 1999) (upholding the propriety of coram nobis relief without even examining the first three criteria). 

[172] United States v. Morgan, 346 U.S. at 503, 511-12 (1954).

[173] Matus-Leva v. United States, 287 F.3d 758 (9th Cir. 2002).

[174] See United States v. Morgan, 346 U.S. at 511-12 (1954); Kyle v. United States, 263 F.2d at 661.  In Morgan, the petitioner pled guilty to a federal crime and served the resulting sentence.  It was not until 12 years later, when he was charged with a state crime and faced an enhanced sentence as a result of his prior federal conviction, that Morgan sought to challenge the federal conviction on the ground that he had been denied the right to counsel. Id. at 503-04, 514.  The Supreme Court held that the delay was sufficiently explained by the fact that “he was nineteen, without knowledge of law, and not advised as to his rights.”  Id. at 511-12.

[175] United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253 (1954); United States v. Darnell, 716 F.2d 479, 481 n. 5 (7th Cir.1983) (coram nobis petitioner must show “sound reasons” for failure to appeal, analogous to “cause and prejudice” showing required of habeas corpus petitioners), cert. denied, 465 U.S. 1083 (1984).

[176] See Hirabayashi, 828 F.2d at 605-06, discussing Sibron v. New York, 392 U.S. 40, 55-57 (1968).

[177] United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir. 2003).

[178] Matus-Leva v. United States, 287 F.3d 758 (9th Cir. April 11, 2002) (coram nobis unavailable to challenge prior conviction on grounds defendant was juvenile since defendant still in custody at time of challenge.  Failure to meet any single coram nobis requirement is fatal.  Does not matter that that defendant missed AEDPA’s one year time limit, and thus could not file habeas petition).

[179] United States v. Esogbue, ___ F.3d ___, 2004 WL 73353 (5th Cir. January 16, 2004).

[180] Ibid., citing Jimenez, 91 F.3d at 768 (footnote omitted). Ineffective assistance of counsel, if proven, can be grounds for coram nobis relief.  See U.S. v. Castro, 26 F.3d 557, 559-60 (5th Cir. 1994) (reversing denial of coram nobis petition and remanding for determination of whether counsel rendered ineffective assistance by failing to advise Castro of the availability of a judicial recommendation against deportation or to request same from the sentencing court).

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS PROVIDES A WAY TO ATTACK A FEDERAL CONVICTION AFTER CUSTODY HAS EXPIRED
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) (A petition for a writ of coram nobis provides a way to collaterally attack a criminal conviction for a person, like Chaidez, who is no longer in custody and therefore cannot seek habeas relief under 28 U.S.C. 2255 or 2241. See United States v. Morgan, 346 U.S. 502, 507, 510"511, 74 S.Ct. 247, 98 L.Ed. 248 (1954).

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS PROVIDES A WAY TO ATTACK A FEDERAL CONVICTION AFTER CUSTODY HAS EXPIRED
Chaidez v. United States, ___ U.S.___, ___, n.1, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013) (A petition for a writ of coram nobis provides a way to collaterally attack a criminal conviction for a person, like Chaidez, who is no longer in custody and therefore cannot seek habeas relief under 28 U.S.C. 2255 or 2241. See United States v. Morgan, 346 U.S. 502, 507, 510"511, 74 S.Ct. 247, 98 L.Ed. 248 (1954).

BIA

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS " ELEMENTS " CONTINUING CONSEQUENCES OF CONVICTION " INADMISSIBILITY CONSTITUTES A CONTINUING CONSEQUENCE
Kovacs v. U.S., 744 F.3d 44, 49 (2d Cir. Mar. 3, 2014) (There is no doubt that Kovacs' likely ineligibility to reenter the United States constitutes a continuing consequence of his conviction.).

Second Circuit

POST CON RELIEF -- VEHICLES " FEDERAL CORAM NOBIS RELIEF
Kovacs v. U.S., 744 F.3d 44 (2d Cir. Mar. 3, 2014) (Padilla rule on ineffective assistance in advising on deportation consequences of plea retroactively applied to petitioner's claim; petitioner demonstrated reasonable probability that he could have negotiated a plea that did not affect his immigration status; petitioner demonstrated reasonable probability that he would have proceeded to trial; and petitioner supplied sufficient reasons to justify delay in seeking relief).

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS " REQUIREMENTS FOR RELIEF
Kovacs v. U.S., 744 F.3d 44, 49 (2d Cir. Mar. 3, 2014) (A petitioner seeking coram nobis relief must demonstrate that 1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ. Foont v. United States, 93 F.3d 76, 79 (2d Cir.1996) (internal citations and quotation marks omitted).).

POST CON RELIEF -- VEHICLES " FEDERAL CORAM NOBIS RELIEF
Kovacs v. U.S., 744 F.3d 44 (2d Cir. Mar. 3, 2014) (Padilla rule on ineffective assistance in advising on deportation consequences of plea retroactively applied to petitioner's claim; petitioner demonstrated reasonable probability that he could have negotiated a plea that did not affect his immigration status; petitioner demonstrated reasonable probability that he would have proceeded to trial; and petitioner supplied sufficient reasons to justify delay in seeking relief).

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS
Kovacs v. U.S., 744 F.3d 44, 49 (2d Cir. Mar. 3, 2014) (A writ of error coram nobis is an extraordinary remedy, United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954), typically available only when habeas relief is unwarranted because the petitioner is no longer in custody. See Porcelli v. United States, 404 F.3d 157, 158 (2d Cir.2005).).

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS " REQUIREMENTS FOR RELIEF
Kovacs v. U.S., 744 F.3d 44, 49 (2d Cir. Mar. 3, 2014) (A petitioner seeking coram nobis relief must demonstrate that 1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ. Foont v. United States, 93 F.3d 76, 79 (2d Cir.1996) (internal citations and quotation marks omitted).).

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL BY AFFIRMATIVE MISADVISING A DEFENDANT CONCERNING THE IMMIGRATION CONSEQUENCES OF PLEA IS A GROUND FOR CORAM NOBIS
Kovacs v. U.S., 744 F.3d 44, 49 (2d Cir. Mar. 3, 2014)(Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). Thus, ineffective assistance of counsel is one ground for granting a writ of coram nobis. See Chhabra v. United States, 720 F.3d 395, 406 (2d Cir.2013).).

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE AT PLEA OF IMMIGRATION CONSEQUENCES DECISION APPLIES RETROACTIVELY IN THE SECOND CIRCUIT AS FAR BACK AS THE 1970s
Kovacs v. U.S., 744 F.3d 44, 50-51 (2d Cir. Mar. 3, 2014) (United States v. Couto, 311 F.3d 179, 188 (2d Cir.2002), holding that an affirmative misrepresentation of the deportation consequences of a guilty plea falls outside this range of professional competence, applies retroactively to this case even though Couto was decided the year after Kovacs' 2001 conviction became final: We have little trouble concluding that, by the time Kovacs' conviction became final, the Couto rule was indicated, and was awaiting an instance in which it would be pronounced. Courts had concluded similar misadvice was objectively unreasonable as far back as the 1970s [footnote omitted]; our decisions reflected this trend long before Kovacs' conviction. See United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam) (Since [defense counsel] does not aver that he made an affirmative misrepresentation, [petitioner] fails to state a claim for ineffective assistance of counsel.); Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974) (While recognizing that deportation was a serious sanction, this court ... [noted] that there was before it no allegation of misleading by counsel.); see also United States v. Zilberov, 162 F.3d 1149, 1998 WL 634211, at *1 (2d Cir.1998) (unpublished summary order) ([T]rial counsel's alleged warning of possible deportation may have been inaccurate and, arguably, objectively unreasonable.); citing United States v. Briscoe, 432 F.2d 1351, 1353"54 (D.C.Cir.1970); Downs"Morgan v. United States, 765 F.2d 1534, 1538"41 (11th Cir.1985); United States v. Nagaro"Garbin, 653 F.Supp. 586, 590 (E.D.Mich.1987); United States v. Corona"Maldonado, 46 F.Supp.2d 1171, 1173 (D.Kan.1999).

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS REQUIREMENTS FOR RELIEF " TIMELINESS " REQUIRED SHOWING
Kovacs v. U.S., 744 F.3d 44, 54 (2d Cir. Mar. 3, 2014) (No statute of limitations governs the filing of a coram nobis petition. See Foont, 93 F.3d at 79. At the same time, the petitioner must demonstrate sound reasons for any delay in seeking relief. Id. The critical inquiry ... is whether the petitioner is able to show justifiable reasons for the delay. Id. at 80.). The court stated: Kovacs has supplied sufficient reasons to justify the delay. He avers that he has diligently pursued ways to reenter the country, but was unaware that a writ of coram nobis existed until October 2011"and contacted the Government soon thereafter. The Government is skeptical about the recent discovery of a writ so ancient. Morgan, 346 U.S. at 506, 74 S.Ct. 247. When such a disputed issue of fact arises, we typically remand for a hearing. Under present circumstances, however, no hearing is needed because it is improbable that Kovacs (or whatever attorney he consulted) would have promptly thought about coram nobis, which is as arcane as it is ancient. The writ is an extraordinary remedy available only in rare cases. Id. at 511, 74 S.Ct. 247. Further, the Government does not suggest any tactical reason Kovacs would have delayed pursuit of the writ until 2011 if he had learned of it earlier. Lastly, the focus on the filing date of the petition insufficiently accounts for Kovacs' efforts to negotiate for an agreed-upon motion in 2011. We conclude that Kovacs' petition was timely. (Id. at 54.) See also United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005).

POST CON RELIEF " VEHICLES " FEDERAL " CORAM NOBIS " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE AT PLEA OF IMMIGRATION CONSEQUENCES DECISION APPLIES RETROACTIVELY IN THE SECOND CIRCUIT AS FAR BACK AS THE
1970s Kovacs v. U.S., 744 F.3d 44, 50-51 (2d Cir. Mar. 3, 2014) (United States v. Couto, 311 F.3d 179, 188 (2d Cir.2002), holding that an affirmative misrepresentation of the deportation consequences of a guilty plea falls outside this range of professional competence, applies retroactively to this case even though Couto was decided the year after Kovacs' 2001 conviction became final: We have little trouble concluding that, by the time Kovacs' conviction became final, the Couto rule was indicated, and was awaiting an instance in which it would be pronounced. Courts had concluded similar misadvice was objectively unreasonable as far back as the 1970s [footnote omitted]; our decisions reflected this trend long before Kovacs' conviction. See United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam) (Since [defense counsel] does not aver that he made an affirmative misrepresentation, [petitioner] fails to state a claim for ineffective assistance of counsel.); Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974) (While recognizing that deportation was a serious sanction, this court ... [noted] that there was before it no allegation of misleading by counsel.); see also United States v. Zilberov, 162 F.3d 1149, 1998 WL 634211, at *1 (2d Cir.1998) (unpublished summary order) ([T]rial counsel's alleged warning of possible deportation may have been inaccurate and, arguably, objectively unreasonable.); citing United States v. Briscoe, 432 F.2d 1351, 1353"54 (D.C.Cir.1970); Downs"Morgan v. United States, 765 F.2d 1534, 1538"41 (11th Cir.1985); United States v. Nagaro"Garbin, 653 F.Supp. 586, 590 (E.D.Mich.1987); United States v. Corona"Maldonado, 46 F.Supp.2d 1171, 1173 (D.Kan.1999).

Lower Courts of Second Circuit

POST CON RELIEF - FEDERAL - CORAM NOBIS
Qiao v. United States, ___ F.Supp.2d ___, 2007 WL 4105813 (S.D.N.Y., Nov. 15, 2007) ("Qiao has shown that (1) his guilty plea was the product of ineffective assistance of counsel and as such, should be set aside to "achieve justice"; (2) his administrative efforts challenging the designation of his 1999 conviction as an aggravated felony constitute "sound reasons . . . for [his] failure to seek appropriate earlier relief"; and (3) the removal proceedings brought by DHS against Qiao cause him "to suffer legal consequences from his conviction that may be remedied by granting of the writ." Id. at 90. Accordingly, Qiao's petition for a writ of error coram nobis is granted, and Qiao's conviction and sentence for mail fraud and conspiracy to commit mail fraud is hereby vacated."). http://bibdaily.com/pdfs/Qiao%2011-15-07.pdf

Third Circuit

POST CON RELIEF " FEDERAL " DUE DILIGENCE REQUIREMENT " IAC EXCUSES SOME DELAY
Mendoza v. United States, 690 F.3d 157 (3d Cir. June 28, 2012, ordered published Aug. 1, 2012) (although counsel's deficient performance may have precluded defendant from seeking relief at the time of the plea, defendant cannot show any sound reasons for his lengthy delay in pursuing relief since that time).

Seventh Circuit

POST CON RELIEF " VEHICLES " CORAM NOBIS
Chaidez v. United States, 655 F.3d 684 (7th Cir. Aug. 23, 2011) (Padilla v. Kentucky announced a new rule of criminal procedure which is not applicable retroactively on collateral review); see United States v. Orocio, 645 F.3d 630 (3d Cir. June 29, 2011) (Padilla simply applied the old Strickland rule, such that it is retroactively applicable on collateral review); United States v. Diaz"Palmerin, 2011 WL 1337326 (N.D.Ill. April 5, 2011) ( Padilla did not announce a new rule); Martin v. United States, 2010 WL 3463949 (C.D.Ill. Aug.25, 2010) (same); United States v. Chavarria, 2011 WL 1336565 (N.D. Ind. April 7, 2011) (same); United States v. Laguna, 2011 WL 1357538 (N.D.Ill. April 11, 2011) (Padilla announced a new rule); United States v. Aceves, 2011 WL 976706, at *3 (D.Hawai'i March 17, 2011) (collecting cases).

Ninth Circuit

POST CON RELIEF - FEDERAL - CORAM NOBIS
United States v. Walgren, 885 F.2d 1417 (9th Cir. Sept. 13, 1989) (federal mail fraud conviction vacated on coram nobis, since mail fraud conviction rests upon the fundamental error that it was commission of a fraud that was not a crime and defendant met other requirements of coram nobis).

Lower Courts of Ninth Circuit

POST CON RELIEF - FEDERAL - CORAM NOBIS
Korematsu v. United States, 584 F. Supp. 1406 (D. Cal. 1984) (granting petition of coram nobis filed by American citizen of Japanese ancestry to vacate 1942 conviction for being in a place from which all persons of Japanese ancestry were excluded pursuant to a civilian exclusion order, where Government deliberately omitted relevant information and provided misleading information before the court concerning whether the actions taken were reasonably related to the security and defense of the nation and the prosecution of the war, where Government failed to rebut petitioner's certificate setting forth collateral consequences he believed he suffered and would continue to suffer as result of the 1942 conviction and where Government failed to rebut petitioner's showing of timeliness).