A common law petition for a writ of error coram nobis permitted the court which rendered judgment “to reconsider it and give relief from errors of fact.”[307]  It is generally a remedy intended to achieve justice when “errors of the most fundamental character” have infected criminal proceedings.[308]  In common law, the writ was granted “to correct errors of fact unknown to the court at the time of the judgment, without fault of the defendant, which, if known would probably have altered the judgment.”[309]  Some courts continue to apply this test,[310] but others now use a more general standard requiring the petitioner to (1) explain the failure to seek earlier relief; (2) show continuing collateral damage resulting from the conviction; and (3) demonstrate that the error is fundamental to the validity of the judgment or that circumstances exist compelling the court to vacate the conviction in order to achieve justice.[311]  The more modern standard does not require that error of fact must have occurred during the original proceedings.

 

Coram nobis does not require that the defendant must be subject to a current form of actual or constructive custody at the time the petition is filed.  This writ can therefore be used to vacate a conviction or sentence after the sentence has been served and the individual is no longer in custody.[312] 

 

The United States Supreme Court enunciated the requirements of the writ of error coram nobis in United States v. Morgan,[313] holding that coram nobis relief continued to be available in federal criminal cases even though Federal Rule of Civil Procedure 60 had eliminated the writ of coram nobis in civil cases.[314]  The Court held the All Writs Act[315] authorized the federal trial courts to issue coram nobis writs, and permitted federal defendants collaterally to attack convictions even after custody had expired.[316]  The court rejected the argument that the motion to vacate sentence, pursuant to 28 U.S.C. § 2255, constitutes the exclusive federal post-conviction remedy.

 

Eighteen states employ petitions for writs of error coram nobis as an alternate avenue to vacate convictions.[317]  In those states, coram nobis may generally be used only where the modern post-conviction remedy is unavailable or ineffective to protect the rights of the defendant.  Many of these states have statutes or rules of court to govern the coram nobis remedy.   At common law, no statute of limitations restricted coram nobis relief.  A few states, however, now apply some sort of statute of limitations to limit the availability of coram nobis relief.[318]

 

[307] See United States v. Morgan, 346 U.S. 502 (1954); B. Witkin, Cal. Criminal Procedure, Judgment & Attack in Trial Court, § 626, p. 616 (1963).

[308] Id. at 511-512.  See also Ybarra v. United States, 461 F.2d 1195 (9th Cir. 1972); United States v. Khalaf, 116 F.Supp. 2d 210 (D. Mass 1999).

[309] Morgan, 346 U.S. at 516; See also LaFave, Israel & King, Criminal Procedure, § 28.1(c) (2d ed. 1991).

[310] See United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001) (“To be entitled to relief, the petitioner must demonstrate (1) an error of fact; (2) unknown at the time of trial; (3) of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding if it had been known.”); Blanton v. United States, 94 F.3d 227 (6th Cir. 1996); Moody v. United States, 874 F.2d 1575, 1577-78 (11th Cir. 1989), cert. denied, 493 U.S. 1081 (1990).

[311] See United States v. Sawyer, 239 F.3d 31 (1st Cir. 2001); United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000); United States v. Barrett, 178 F.3d 34, 56 n.20 (1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000); Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996); Hager v. United States, 993 F.2d 4, 5 (1st Cir. 1993). 

[312] See L. Yackle, Post-conviction Remedies § 36, p. 165 (1998), citing Byrnes v. United States, 408 F.2d 599, 602 (9th Cir. 1969) (stating that the purpose of coram nobis is to attack “legal disadvantages which survive the satisfaction of the sentence”); accord, United States v. Gross, 614 F.2d 365 (3rd Cir. 1980), cert. denied, 447 U.S. 925 (1980).  See also United States v. Brown, 413 F.2d 878 (9th Cir. 1969), cert. denied, 397 U.S. 947 (coram nobis is proper only when petitioner is no longer in federal custody).  Cf. United States v. Morgan, 346 U.S. 502, 512 (1954) (the court recognized that “although a term has been served, the results of the conviction may persist.”). But see United States v. Golden, 854 F.2d 31 (3d Cir. 1988) (incarcerated prisoner whose attorney failed to follow instructions to file a timely Rule 35 motion for reduction of sentence entitled to raise issue by coram nobis).  

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

[314] Id. 

[315] 28 U.S.C. § 1651(a)

[316] Id. at 506-510.

[317] Arkansas, California, Connecticut, Florida, Idaho, Illinois, Kentucky, Maryland, Nebraska, New Mexico, New York, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, and Wisconsin.  See State Post-Conviction Remedies, § 3.5, p. 148.

[318] These states include Idaho, Illinois, Kentucky, South Dakota, Tennessee, and Washington.  See id. at 149.

Other

POST CON RELIEF - FEDERAL - CORAM NOBIS - CUSTODY - STATUTE OF LIMITATIONS
Where a federal defendant files a federal petition for coram nobis relief, the issue may arise whether a federal defendant who has completed his BOP term and has since been in ICE detention is deemed to be concurrently on Supervised Release (the federal equivalent of parole). If so, s/he is in federal custody and therefore must use 28 U.S.C. 2255, instead of federal coram nobis. If not, then there is no federal custody, and no 2255 jurisdiction, and no barrier to using federal coram nobis. While the administrative practice is to accord ICE detainees Supervised Release credit, the statute does not require it so it is possible to argue that the administrative practice may be ultra vires. Thanks to James Smith.