(A)

California Coram Nobis Relief.  Coram nobis is a judicially-created remedy to secure relief from a judgment that was rendered by the court in ignorance of a fact which (a) does not go to guilt or innocence but (b) if known by the court would have prevented the judgment.[268]  The purpose of the writ is to provide a remedy, where none is otherwise available, against a judgment that was procured under circumstances which offend fundamental concepts of justice such as the due process clause of the Fourteenth Amendment.[269]

 

            In People v. Kim, the California Supreme Court recently curtailed the availability of coram nobis relief.[270]  Kim had raised a number of distinct coram nobis claims.  He alleged that he previously had not known that he would be deported because the conviction constituted a second conviction of a crime of moral turpitude.  He also noted that he had been unaware at the time of the plea that, if deported, he would be obligated to serve in the South Korean military and if he refused to serve on religious grounds, he would be imprisoned there. 

 

            The Supreme court held that Kim was procedurally barred from coram nobis relief for three reasons:  (1) he failed to establish due diligence in discovering and presenting his claims; (2) he failed to avail himself of other legal remedies when he had the chance, even though the failure was without fault or negligence on his part; and (3) he engaged in piecemeal litigation presenting his current claims in a second coram nobis petition.

 

            Further, the Supreme Court held that Kim was not entitled to coram nobis relief on the merits.  This decision held that the “unknown fact” that is the basis for coram nobis relief “must establish a basic flaw that would have prevented rendition of the judgment.”[271]  “New facts that would merely have affected the willingness of a litigant to enter a plea, or would have encouraged or convinced him or her to make different strategic choices or seek a different disposition, are not facts that would have prevented rendition of the judgment.”[272] 

 

            Accordingly the court found that the fact that Kim had been unaware of the immigration consequences of the conviction at the time of his plea could not form the basis of a legally cognizable coram nobis petition.  The fact that the immigration consequences of the plea were unknown to the court and parties was a “mistake of law,” rather than a “mistake of fact” sufficient to warrant coram nobis relief.[273] 

 

            The court soundly rejected the reasoning in People v. Wiedersperg, which had held that the requirements for coram nobis were met where, at the time of accepting the plea, the judge, defendant, and defendant’s attorney were all unaware that the defendant was a noncitizen, and the defendant testified that he would not have pleaded guilty had he known that he would thereby be rendered deportable.[274]  The court of appeals reasoned that, because this newly discovered evidence did not go to guilt or innocence, and neither defendant nor counsel was aware of the possibility of deportation until deportation proceedings were begun, this “mistake of fact” was sufficient to satisfy the coram nobis requirements.  Without directly overruling People v. Wiedersperg, the court in People v. Kim made clear that the court of appeals’s decision had limited applicability to future cases.[275] 

 

            The Kim court made clear that coram nobis petitions may only be used in a limited number of factual scenarios:

 

            (1)  Where defendant was insane at the time of trial and this fact was unknown to court and counsel;

 

(2)    Where the defendant was an infant and appeared without the appointment of a guardian or guardian ad litem;

 

(3)    Where the defendant was a feme covert and her husband was not joined;

 

(4)    Where the defendant was a slave and was tried and sentenced as a free man;

 

(5)    Where the defendant was dead at the time judgment was rendered;

 

(6)    Where default was entered against a defendant who had not been served with summons and who had no notice of the proceeding;

 

(7)    Where counsel inadvertently entered an unauthorized appearance in behalf of a defendant who had not been served with process;

 

(8)    Where a plea of guilty was procured by extrinsic fraud;

 

(9)    Where a plea of guilty was extorted through fear of mob violence;

 

(10)          Where defendants and their counsel were induced by false representations to remain away from the trial under circumstances amounting to extrinsic fraud. 

 

(11)          Where by the failure of the clerk to properly file an answer the party was deprived of his defense.[276]

 

            Coram nobis will not be granted to allow consideration of a fact that goes to an issue already adjudicated by the court, even if the issue was wrongly decided.  It will not issue to correct a matter of law or any other matter that could have been reviewed on a motion for a new trial, an appeal, or by seeking a writ of habeas corpus, even if the time to apply for such relief has expired.[277]  Therefore, in California, violations of constitutional rights such as those involving ineffective assistance of counsel or search and seizure generally will not support coram nobis.[278]  The Court of Appeals has held that the writ of coram nobis will not lie to correct a judgment based on perjured testimony unless the prosecution knew or had reason to know of the perjury when it occurred.[279]

 

            Accordingly, after the California Supreme Court’s decision in Kim, state coram nobis will no longer be a practical post-conviction tool for the majority of cases.

[268] For further information see C.E.B., Appeals and Writs in Criminal Cases § § 2.149‑2.180 (2d ed. 2008); Erwin, Millman, Monroe, Sevilla, Tarlow, California Criminal Defense Practice, § 102.20 (Matthew Bender 2008); Prickett, The Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1 (1990).  For discussion of the writ of error coram nobis and immigration law, see D. Kesselbrenner  and L. Rosenberg, Immigration Law and Crimes (Matthew Bender), § 4.2(b) and Garcia, The Coram Nobis Writ in an Immigration Law Context, 2 U.C.L.A. Chicano Law Review 92 (1975).

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

[270] People v. Kim (2009) 45 Cal.4th 1078, 90 Cal.Rptr.3d 355.

[271] Id. at p. 1103.

[272] Ibid.

[273] Id. at p. 1102.

[274] Because Penal Code § 1016.5 now requires the court to advise the defendant of the possibility of deportation and other adverse immigration consequences prior to plea, it is unlikely that a case could occur in which (a) § 1016.5 was complied with, yet (b) the client was unaware of his vulnerability to deportation, unless there was a translation problem so the advisement was given but not understood.  On the other hand, because of all the legal mumbo jumbo at the time a plea is entered, it is quite common for a defendant not to understand the full significance of the § 1016.5 admonition, and coram nobis should be available in this instance.

[275] People v. Kim (2009) 45 Cal.4th 1078, 1103-1104.

[276] People v. Kim (2009) 45 Cal. 4th 1078, 1095.

[277] See, e.g., People v. Lewis (1958) 166 Cal.App.2d 602, 333 P.2d 428.

[278] See, e.g., People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328; People v. Wheeler (1970) 5 Cal.App.3d 534, 539, 85 Cal.Rptr. 242.  In contrast, a writ of error coram nobis brought in federal court may lie to correct constitutional error such as gravely inadequate assistance of counsel even after the client is no longer in custody and there is therefore no federal habeas jurisdiction.  See, e.g., United States v. Garguilo, 324 F.2d 795 (2d Cir. 1963); Kesselbrenner, supra at § 4.2(b).

[279] Mendez v. Superior Court (People) (2001) 87 Cal.App.4th 791.

CAL POST CON " VEHICLES " CORAM NOBIS " INEFFECTIVE ASSISTANCE CLAIM CANNOT BE RAISED BY CORAM NOBIS CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " IAC CLAIM CANNOT BE RAISED BY CORAM NOBIS
People v. Cuatete, 2010 WL 1744891, *3 n.4 (Cal. Ct. App. May 3, 2010) ([A] petition for writ of error coram nobis[] precludes the issue of ineffective assistance of counsel.).

SENTENCE " GROUNDS " DUE PROCESS " FAILURE TO APPLY BEYOND REASONABLE DOUBT STANDARD TO IMPOSE SENTENCE HARSHER THAN GUIDELINES SENTENCE VIOLATES DUE PROCESS
Despite the fact that the U.S. Sentencing Guidelines are no longer mandatory, if the Guidelines are followed by a district court at sentencing, then any facts found that increase the Guideline sentence must be proved by the government beyond a reasonable doubt. United States. v. Booker, 543 U.S. 220 (2005). However, many courts continue to assume that a preponderance of evidence standard is sufficient to impose harsher sentences, which is ill advised and could result in a remand for resentencing. See e.g., United States v. Fisher, 502 F.3d 293 (3d Cir. 2007); United States v. Villareal-Amarillas, 526 F.3d 892 (8th Cir. 2009). While the courts may view the Sentencing Guidelines as advisory, the Guidelines are still considered important and relevant. But because there remain significant inconsistencies regarding which standards of proof are being applied in a given circumstance, its incumbent on counsel to apply the standard that best serves the client, which in most cases will be the beyond a reasonable doubt standard. To quote Judge Nancy Gertner: Due Process requires procedural safeguards and a heightened standard of proof, namely, proof beyond a reasonable doubt. United States v. Pimental, 367 F. Supp. 2d 143, 154 (D. Mass. 2005). See Alan Ellis & Mark H. Allenbaugh, Standards of Proof at Sentencing, http://www.alanellis.com/CM/Publications/Standards-of-Proof-at-Sentencing.asp (2010).

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.).

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " CORAM NOBIS " NONSTATUTORY MOTION TO VACATE " THIS VEHICLE CANNOT RAISE A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Mbaabu, 213 Cal.App.4th 1139, 152 Cal.Rptr.3d 818, 821 (4th Dist.Feb. 14, 2013) (We hold that a motion to vacate the judgment in the nature of coram nobis is not a proper vehicle for relief from a constitutional violation of the defendant's right to effective assistance of counsel.). Further, even if defendant's motion was treated as a petition for writ of habeas corpus, it should have been denied as untimely and duplicative, in addition to lacking in any evidence from the defendant that he would have rejected the offer and gone to trial had he been properly advised of immigration consequences.

CAL POST CON " VEHICLES " CORAM NOBIS " GROUNDS " CORAM NOBIS CAN BE MADE GRANTED ON GROUNDS THAT WOULD SUPPORT A MOTION TO WITHDRAW A PLEA UNDER PENAL CODE 1018 INCLUDING DURESS, FRAUD, OR OTHER FACT OVERREACHING THE DEFENDANTS FREE WILL AND JUDGMENT
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 821 (4th Dist. Feb. 14, 2013) (To be entitled to relief on a postjudgment motion to vacate the judgment, the courts have required a showing essentially identical to that required under section 1018, that is, on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits.); citing People v. Gari, 199 Cal.App.4th 510, 523, 132 Cal.Rptr.3d 80 (4th Dist. Sept. 12, 2011).

CAL POST CON " VEHICLES " CORAM NOBIS " GROUNDS
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 821 (4th Dist. Feb. 14, 2013) (The grounds on which a litigant may obtain relief via a writ of error coram nobis are narrower than on habeas corpus. (People v. Kim, supra, 45 Cal.4th at p. 1091, 90 Cal.Rptr.3d 355, 202 P.3d 436, citing In re Lindley (1947) 29 Cal.2d 709, 724"725, 177 P.2d 918.) The writ's purpose is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court. (Kim, at p. 1091, 90 Cal.Rptr.3d 355, 202 P.3d 436, citing People v. Adamson (1949) 34 Cal.2d 320, 326"327, 210 P.2d 13.)).

CAL POST CON " VEHICLES " CORAM NOBIS " NOT AVAILABLE TO CORRECT ERRORS OF LAW
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 824 (4th Dist. Feb. 14, 2013) (Because the writ of error coram nobis applies where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment, the remedy does not lie to enable the court to correct errors of law. (People v. Kim, supra, 45 Cal.4th at p. 1093, 90 Cal.Rptr.3d 355, 202 P.3d 436.) This includes constitutional claims, such as a claim that counsel was ineffective in failing to admonish a defendant of the immigration consequences of his conviction. (Id. at pp. 1095, 1104, 1108"1109, 90 Cal.Rptr.3d 355, 202 P.3d 436.).

CAL POST CON " VEHICLES " CORAM NOBIS " DUE DILIGENCE " DEFENDANT FAILED TO PURSUE REMEDIES WITH DUE DILIGENCE BY FAILING TO APPEAL ORIGINAL DENIAL OF MOTION TO WITHDRAW PLEA
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 825 (4th Dist. Feb. 14, 2013) (Finally, defendant did not demonstrate diligence in pursuing his remedies by failing to appeal the denial of his original motion, given that Padilla had already been decided, and was cited by defendant, when the first motion was made.).

Other

CAL POST CON " VEHICLES " CORAM NOBIS
People v. Gari, 199 Cal.App.4th 510 (4th Dist. Sept. 12, 2011) (whether and when defendant committed charged offenses were facts of which defendant had knowledge when he pleaded guilty, and thus a writ of error coram nobis was not available to defendant).

SENTENCE " GROUNDS " DUE PROCESS " FAILURE TO APPLY BEYOND REASONABLE DOUBT STANDARD TO IMPOSE SENTENCE HARSHER THAN GUIDELINES SENTENCE VIOLATES DUE PROCESS
Despite the fact that the U.S. Sentencing Guidelines are no longer mandatory, if the Guidelines are followed by a district court at sentencing, then any facts found that increase the Guideline sentence must be proved by the government beyond a reasonable doubt. United States. v. Booker, 543 U.S. 220 (2005). However, many courts continue to assume that a preponderance of evidence standard is sufficient to impose harsher sentences, which is ill advised and could result in a remand for resentencing. See e.g., United States v. Fisher, 502 F.3d 293 (3d Cir. 2007); United States v. Villareal-Amarillas, 526 F.3d 892 (8th Cir. 2009). While the courts may view the Sentencing Guidelines as advisory, the Guidelines are still considered important and relevant. But because there remain significant inconsistencies regarding which standards of proof are being applied in a given circumstance, its incumbent on counsel to apply the standard that best serves the client, which in most cases will be the beyond a reasonable doubt standard. To quote Judge Nancy Gertner: Due Process requires procedural safeguards and a heightened standard of proof, namely, proof beyond a reasonable doubt. United States v. Pimental, 367 F. Supp. 2d 143, 154 (D. Mass. 2005). See Alan Ellis & Mark H. Allenbaugh, Standards of Proof at Sentencing, http://www.alanellis.com/CM/Publications/Standards-of-Proof-at-Sentencing.asp (2010).

Federal Coram Nobis relief in the Ninth Circuit
By Rose Cahn 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.).