CRIMINAL DEFENDANT’S HANDBOOK – Order Now!
Defendant’s who cannot meet the custody requirement of 28 U.S.C. §2255 or §2241, may still be able to obtain relief under the All Writs Act pursuant to 28 U.S.C. §1651, by petitioning for a writ in the nature of coram nobis, which has no custody requirement.
Sections 2255 and 2241 leave federal prisoners little need to resort to the common law writ of coram nobis. Coram nobis is “an-extraordinary remedy [available] only under circumstances compelling action to achieve justice.” United States v. Dawes, 895 F.2d 1581, 1582 (10th Cir. 1990)(quoting United States v. Morgan, 346 U.S. 502, 512, 98 L.Ed.2d 248, 72 S.Ct. 247 (1954)(quoting United States v. Mayer, 235 U.S. 55, 69, 59 L.Ed.2d 129, 35 S.Ct. 16 (1912)).
Some courts have expressly limited its use to situations in which all statutory post-conviction remedies are unavailable. United States v. Folak, 865 F.2d 110, 113 (7th Cir. 1988).
Coram nobis is traditionally only used to correct factual errors “material to the validity and regularity of the legal proceeding itself” such as the defendant’s death or not being of age. Carlisle v. United States, 517 U.S. 416, 134 L.Ed.2d 613, 116 S.Ct. 1460, 1467 (1996).
“The writ of coram nobis affords a remedy to attack an unconstitutional or unlawful conviction in cases when the petitioner already has fully served a sentence. Telink Inc. V. United States, 24 F.3d 42, 45 (9th Cir. 1994). “Writ of coram nobis is an ‘extraordinary remedy’ … available to a petitioner no longer in custody.” United States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994).
A petitioner seeking a writ of coram nobis must plead facts showing that: “(1) the claim could not have been raised on direct appeal; (2) the claimed error is a defect of a type that ‘sap[sl the proceeding of any validity; (3) the conviction produced lingering and still extant collateral civil disabilities [even if the disabilities do not constitute custody]; and (4) the error is of a type that would have justified relief during the term of imprisonment.” United States v. Barber, 881 F.2d 345, 348 (7th Cir. 1989), cert. denied, 495 U.S. 922 (1990).
Alternately, the Ninth Circuit has formulated four factors requiring proof for a petitioner seeking a writ of coram nobis: “(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 [which, even if insufficient to qualify as custody are] sufficient to satisfy the case or controversy requirement of Article 111; and (4) the error is of the most fundamental character.” United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989)(quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987)).
A corporation can employ a writ of coram nobis to raise Sixth Amendment ineffective assistance of counsel claim. United States v. Mett, 65 F.3d 1531 (9th Cir. 1995).