Post-Conviction Relief for Immigrants


§ 5.78 F. Coram Nobis

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Coram nobis[305] is a common-law writ, a judicially created remedy to secure relief from a judgment that was rendered by the court in ignorance of a fact that (a) does not go to guilt or innocence, but (b) if known by the court, would have prevented the judgment.  The purpose of the writ is to provide a remedy where none other is available against a judgment that was procured under circumstances offensive to fundamental concepts of justice, such as the due process clause of the Fourteenth Amendment.[306]


            The writ is riddled with loopholes and is a very difficult vehicle to use to force a reluctant court to grant relief to your client.  If there is no other feasible way, however, it does provide an opportunity to file an attack on a conviction and get into court in hopes that the equities may motivate the prosecution or court to grant relief.

[305] For further information on this writ in California, see Appeals and Writs in Criminal Cases § § 2.149‑2.180; Erwin, Millman, Monroe, Sevilla, Tarlow, California Criminal Defense Practice, § 102.20 (Matthew Bender); Prickett, The Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1 (1990).  For discussion of writ of error coram nobis and immigration law, see Immigration Law and Crimes (West Group 1999), § 4.2(b) and Garcia, The Coram Nobis Writ in an Immigration Law Context, 2 U.C.L.A. Chicano Law Review 92 (1975).

[306] See, e.g., Taylor v. Alabama, 335 U.S. 252, 259, 68 S.Ct. 1415 (1947); People v. Shorts, 32 Cal.2d 502, 197 P.2d 330 (1948); People v. Weidersperg, 44 Cal.App.3d 550, 118 Cal.Rptr. 755 (1975).



Lower Courts of Fourth Circuit

Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 Va. Cir. LEXIS 244 (County Circuit Ct. Aug. 18, 2006) (Virginia coram vobis relief granted on claim of ineffective assistance of counsel since both defendant and court were unaware of immigration consequences at the time of plea, so sentence amended from two years to 360 days).
Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 WL 2388632 (Aug. 18, 2006) (granting writ of coram vobis, reducing sentence from two years to 360 days, thereby entitling petitioner to discretionary relief in the immigration courts, after custody had expired, since petitioner had no reason to suspect the advice was faulty any earlier than when he was placed into removal proceedings upon returning to the United States).

Lower Courts of Eleventh Circuit

Ten states Alabama, Arizona, Florida, Illinois, Indiana, Mississippi, Missouri, New York, South Carolina, and Utah--allow or have allowed ineffective assistance of counsel claims to be raised on coram nobis. Alabama, McKinney v. State, 511 So.2d 220 (Ala. 1987) (coram nobis relief granted on grounds convicted person received ineffective assistance of counsel when pleading guilty); Arizona, State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966) (coram nobis is proper remedy for claim that guilty pleas were entered in violation of right to effective assistance of counsel); Florida, Wells v. State, 788 So. 2d 200 (Fla. 2001) (ineffective assistance of counsel claim was properly raised in coram nobis petition); Moreno v. State, 592 So. 2d 1226 (Fla. Dist. Ct. App. 4th Dist. 1992) (coram relief granted where guilty plea resulted from ineffective assistance of counsel); Dugart v. State, 578 So. 2d 789 (Fla. Dist. Ct. App. 4th Dist. 1991) (a claim of ineffective assistance of counsel may support a petition for coram nobis); Illinois, People v. McManus, 66 Ill. App. 3d 986, 23 Ill. Dec. 774, 384 N.E.2d 568 (3d Dist. 1978) (coram nobis relief granted where direct appeal from conviction had been dismissed due to attorneys neglect); Indiana, Dobson v. State, 242 Ind. 267, 177 N.E.2d 395 (1961) (competency of counsel claim on coram nobis); Douglas v. State, 234 Ind. 621, 130 N.E.3d 465 (1955) (coram nobis petition does not allege that trial counsel was incompetent); Mississippi, Baker v. State, 358 So.2d 401 (Miss. 1978)(entry of guilty plea under mistaken advice by counsel if properly pleaded and supported by sufficient facts makes out case for relief under coram nobis); Missouri, Ramsey v. States, 767 S.W.2d 572 (Mo. Ct. App. E.D. 1988) (Rule 27.26 motion treated as a petition for a writ of coram nobis allows for claim of ineffective assistance of counsel where facts show deficient performance of counsel and prejudice); New York, Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001) (coram nobis remains available only in the context of ineffective assistance of appellate counsel on direct appeal); People v. Keebler, 15 A.D.3d 724, 789 N.Y.S.2d 547 (3d Dept 2005), leave to appeal denied, 4 N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327 (2005) (challenges to adequacy of appellate counsel can only be entertained in a common law coram nobis proceeding); South Carolina, State v. Liles, 246 S.C. 59, 142 S.E.2d 433 (1965) (ineffective assistance of counsel claim brought on coram nobis); Utah, State v. Rees, 2003 UT App 4, 63 P.3d 120 (Utah Ct. App. 2003), cert. granted, 73 P.3d 946 (Utah 2003) (coram nobis encompasses not only errors of fact but also legal errors or constitutional or fundamental proportion including a claim of ineffective assistance of appellate counsel).      13 statesColorado, District of Columbia, Hawaii, Idaho, Maine, New Mexico, North Carolina, Oklahoma, Oregon, Tennessee, Washington, and West Virginia--have not directly decided whether ineffective assistance of counsel can be brought on coram nobis, but leave room to raise the claim. Colorado, only law review cite was given in treatise re: law on coram nobis grounds and it did not work (coram nobis may vacate a conviction obtained in violation of any federal or state constitutional right); District of Columbia, Thomas v. U.S., 271 F.2d 500 (D.C. Cir. 1959) (where a sentence is attacked on grounds outside the record under circumstances where 28 U.S.C. 2255 is not available, a petitioner has rights in common law writ of coram nobis); Douglas v. U.S., 703 A.2d 1235 (D.C. 1997) (the purpose of coram nobis is to correct errors not due to the defendants negligence and which amounts to a miscarriage of justice); Hawaii, Wong v. Among, 52 Haw. 420, 477 P.2d 630 (1970) (coram nobis relief available to correct fundamental errors and where the circumstances compel such action to achieve justice); Idaho, Idaho R. Civ. Proc. 60(b) (catchall provision for relief on coram nobis if there is any other reasons justifying relief from the operation of judgment); Maine, Dwyer v. State, 151 Me. 382, 120 A.2d 276 (1956) (coram nobis is the proper common law vehicle to establish ones constitutional rights, upon a showing of an unjust deprivation thereof); New Mexico, New Mexico Rule Civil Procedure 1-060(b) (coram nobis relief is available from judgment for mistakes, inadvertence, surprise, inexcusable neglect, fraud, etc. and any other reason justifying relief from the operation of the judgment); State v. Romero, 76 N.M. 449, 415 P.2d 837 (1966)(New Mexico rule 60(b) is identical to Fed. R. Civ. Proc. Rule 60(b) with intent to retain all substantive rights protected by the old common law writs of coram nobis but eliminates the niceties); North Carolina, State v. White, 74 N.C. 220, 162 S.E.2d 473 (1968)(the North Carolina PCHA as now written incorporates habeas corpus, coram nobis, and any other common law or statutory remedy under which a prisoner may collaterally attack his sentence); Oklahoma, Smith v. State, 1967 OK CR 149, 431 P.2d 949 (Okla. Crim. App. 1967) (coram nobis is limited to an error of fact for which the statute provides no other remedy, which was unknown to the court at the time and would have prevented the judgment if known); Oregon, State v. Endsley, 214 Or. 537, 331 P.2d 338 (1958) (coram nobis petition is available to obtain relief in a limited class of cases from conviction obtained in violation of a constitutional right); Tennessee, Tennessee Code Annotated 40-26-105 (a writ of error will like for subsequently or newly discovered evidence relating to matters that were litigated at trial if such evidence would have resulted in a different judgment at trial); Harris v. State, 102 S.W.3d 587 (Tenn. 2003) (the grounds for seeking a writ of error coram nobis are not limited to specific categories, but may be based upon any newly discovered evidence relating to matters litigated at trial); Washington, Wash. Super. Ct. Crim. R. 7.8(b) (coram nobis is allowed for mistakes, inadvertence, fraud, newly discovered evidence etc. and any other reason justifying relief from the operation of judgment); State v. Zavala-Reynoso, 127 Wash. App. 119, 110 P.3d 827 (Div. 3 2005) (a judgment may be vacated for any other reason justifying relief, but is limited to extraordinary circumstances not otherwise covered by Rule 7.8(b) and where relief did not otherwise exist at time of judgment); West Virginia, State ex rel. Richey v. Hill, 216 W. Va. 155, 603 S.E.2d 177 (2004) (coram nobis is available when habeas corpus is not, i.e., when the petitioner is no longer incarcerated but is of limited scope, it does not reach prejudicial misconduct in the course of the trial).      Unclear whether five states--Georgia, Maryland, Pennsylvania, Rhode Island, and Wisconsinmay or might have allowed an ineffective assistance of counsel claim to be raised on coram nobis. Georgia, South v. State, 72 Ga. App. 79, 33 S.E.2d 23 (1945) (the purpose of coram nobis is to correct an error of fact not apparent on the record and where the defendant has been deprived of a defense to which he could not have made at his trial) Note: the writ of coram nobis will not lie where there is another adequate remedy--IAC must be brought on direct appeal); Maryland, Skok v. State, 361 Md. 52, 760 A.2d 647 (2000) (the grounds for challenging a conviction via coram nobis must be of constitutional, jurisdictional, or fundamental character and the petitioner must be suffering or facing significant collateral consequences from the conviction) Note: coram nobis cannot be used if another statutory or common law remedy is available - in Maryland, the UPCPA is used to raise an IAC claim; Pennsylvania, Com. v. Orsino, 197 Pa. Super. 306, 178 A.2d 843 (1962)(purpose of coram nobis is to correct errors of fact and not of law which if known at the time judgment was rendered would have prevented it) Note: coram nobis may not be used as a substitute for an appeal or as a motion for a new trial; Rhode Island, State v. Lanoue, 117 R.I. 342, 366 A.2d 1158 (1976) (coram nobis petition is appropriate procedure for raising newly discovered evidence claim attacking probation and deferred sentence revocation); Wisconsin, Jessen v. State, 95 Wis. 2d 207, 290 N.W.2d 685 (1980) (the purpose of coram nobis is for the trial court to correct an error of fact which was unknown at the time of trial and if known would have prevented the judgment); Houston v. State, 7 Wis. 2d 348, 96 N.W.2d 343 (1959) (coram nobis not available where another remedy would lie, such as where habeas would afford a proper and complete remedy) Note: habeas corpus is the proper remedy for raising an IAC claim.