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.