Coram nobis is an ancient right to seek a correction by a court of a prior error made by the justice system. In federal court, coram nobis exists today only in criminal cases, such in asking a court years later to overturn a prior conviction. In state court, coram nobis (also called coram vobis) exists in any type of case to the extent coram nobis has not been limited or prohibited by the state legislature.
A petitioner would seek a "writ of coram nobis," which would be an order by the court to overturn a conviction or sentence against petitioner, or change a conviction or sentence in some way. Typically a writ of coram nobis is sought after a sentence is served, because 28 U.S.C. § 2255 and other statutes provide stronger rights of prisoners to seek reconsideration while incarcerated.
The history of this ancient right was explained as follows by the Virginia Supreme Court in its decision of Neighbors v. Commonwealth, 274 Va. 503, 508 (2007):
- The writ of error coram vobis, or coram nobis, is an ancient writ of the common law. It was called coram nobis (before us) in King's Bench because the king was supposed to preside in person in that court. It was called coram vobis (before you -- the king's justices) in Common Pleas, where the king was not supposed to reside. The difference related only to the form appropriate to each court and the distinction disappeared in this country when the need for it ended. 49 C.J.S., Judgments, § 311, p. 561, n. 28. Mr. Minor says the proper designation here is coram vobis. IV Minor's Inst., 3 ed., Part I, pp. 1052-3.
- The principal function of the writ is to afford to the court in which an action was tried an opportunity to correct its own record with reference to a vital fact not known when the judgment was rendered, and which could not have been presented by a motion for a new trial, appeal or other existing statutory proceeding. Black's Law Dict., 3 ed., p. 1861; 24 C.J.S., Criminal Law, § 1606 b., p. 145; Ford v. Commonwealth, 312 Ky. 718, 229 S.W.2d 470. It lies for an error of fact not apparent on the record, not attributable to the applicant's negligence, and which if known by the court would have prevented rendition of the judgment. It does not lie for newly-discovered evidence or newly-arising facts, or facts adjudicated on the trial. It is not available where advantage could have been taken of the alleged error at the trial, as where the facts complained of were known before or at the trial, or where at the trial the accused or his attorney knew of the existence of such facts but failed to present them. 24 C.J.S., Criminal Law, § 1606 at p. 148; 49 C.J.S., Judgments, § 312 c., pp. 563, 567.
A federal district explained the use of coram nobis in the context of an unsuccessful attempt to overturn a criminal conviction in order to avoid deportation:
- A writ of error coram nobis is a remedy available under the All Writs Act, 28 U.S.C. § 1651(a), and can be invoked to vacate a federal conviction after the sentence has been served. United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989). It is an "extraordinary remedy, and a court's jurisdiction to grant relief is of limited scope." Id. at 106. This extraordinary relief is warranted "only under circumstances compelling such action to achieve justice." United States v. Morgan, 346 U.S. 502, 511, 74 S. Ct. 247, 98 L. Ed. 248 (1954). This includes errors "of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid." Id. at 509 n.15. The burden is on the petitioner to prove that the earlier proceeding, which is presumed valid, contains an error of fundamental magnitude. Stoneman, 870 F.2d at 106; United States v. Osser, 864 F.2d 1056, 1059 (3d Cir. 1988). The writ extends to both trial and sentencing proceedings and includes the authority to modify a coram nobis petitioner's sentence. See United States v. Golden, 854 F.2d 31, 32 (3d Cir. 1988).
- To be eligible for relief, petitioner must meet several threshold conditions: "(1) he is suffering from continuing consequences of the allegedly invalid conviction; (2) there was no remedy available at the time of trial; and that (3) sound reasons exist for failing to seek relief earlier." United States v. Babalola, 248 F. App'x 409, 412 (3rd Cir. 2007) (internal citations omitted).The threat of deportation is a "continuing adverse consequence[.]" Gudiel-Soto v. United States, 761 F. Supp. 2d 234, 238 (D.N.J. 2011) (citing Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1481, 176 L. Ed. 2d 284 (2010)).
United States v. Sidhana, 2013 U.S. Dist. LEXIS 139136, *4-6 (D.N.J. Sept. 26, 2013).
An ineffective assistance of counsel claim qualifies for use in this context, because a party cannot raise that at trial. See United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). "Thus, if Petitioner's claim that his attorney gave him incorrect immigration advice were true, then it is reasonable that he did not seek relief until he discovered this alleged error while consulting with another attorney in 2012. See United States v. Cariola, 323 F.2d 180, 183 (3d Cir. 1963). Factually, however, it is clear that he was advised by his counsel that deportation was virtually certain, as the plea colloquy attests. His actual claim of error is that he did not know that (1) if his attorney had tried to convince this Court to grant an even greater departure than the large departure actually granted, and (2) if his attorney had succeeded in getting such a huge departure in a bank robbery crime that the sentence fell below 1 year, then he would avoid mandatory deportation. ... Ineffective assistance of counsel "constitutes a fundamental defect sufficient to subject such a tainted conviction to collateral attack via a writ of coram nobis." Babalola, 248 F. App'x at 412 (citing United States v. Rad-O-Lite of Phila., Inc., 612 F.2d 740, 744 (3d Cir. 1979)). To succeed on such a claim, Petitioner must show: (1) that counsel's representation "fell below an objective standard of reasonableness" and (2) that counsel's deficiencies resulted in prejudice. United States v. Orocio, 645 F.3d 630, 636 (3d Cir. 2011) (internal citations omitted) (abrogated by Chaidez v. United States, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013))." United States v. Sidhana, 2013 U.S. Dist. LEXIS 139136, *6-7 (D.N.J. Sept. 26, 2013).