In 1789, Congress passed the Judiciary Act to establish the judicial courts in the United States. This act also allows courts to issue writs, including the writ of
coram nobis. Originally, federal courts applied the writ of
coram nobis only to correct technical errors, such as those made by a clerk of the court in the records of the proceedings. The 1914 Supreme Court case
United States v. Mayer expanded the scope of the writ of
coram nobis to include
fundamental errors, but the Court declined in this case to decide whether federal courts are permitted to issue the writ of
coram nobis. In 1954, the Supreme Court determined in
United States v. Morgan that federal courts are permitted to issue the writ of
coram nobis to correct fundamental errors, such as those where discovery of new information is sufficient to prove a convicted felon is
actually innocent. Since the
Morgan case, federal courts traditionally issue a writ of coram nobis whenever a former federal prisoner petitions the original sentencing court to set aside the conviction based upon new information that was not available when the petitioner was in custody and where this new information demonstrates that the conviction was a result of a fundamental error.
History of the writ of coram nobis in federal courts from 1789 to 1954 The Judiciary Act of 1789 The history of the writ of
coram nobis in United States federal courts began in 1789 when Congress enacted the
Judiciary Act. Under Section 14 of the Judiciary Act, federal courts have the authority to issue a
writ whenever the court deems it necessary to achieve justice and whenever no congressional law covers the issues before the court. This section was known as the "All-Writs Provision" of the Judiciary Act until 1948 when it became more commonly known as the "All-Writs Act" after Congress modified the Judicial Code and consolidated this provision into . Under the All Writs Act, federal district courts have the "power to issue writs of
scire facias,
habeas corpus, and all other writs not specifically provided for by
statute". Congress had not specifically provided by statute the authority for federal courts to issue a writ of
coram nobis; therefore, the All Writs Act provides federal courts this authority. The first case in a federal court to address the writ of
coram nobis was
Strode v. The Stafford Justices in 1810. In this case, the Supreme Court Chief Justice
John Marshall wrote the opinion in this Circuit Court case and held that the writ of
coram nobis is distinguishable from the writ of error and therefore not subject to the writ of error's
statute of limitations. The first Supreme Court case mentioning the writ of
coram nobis (using the term
coram vobis) is the 1833 case, ''Pickett's Heirs v. Legerwood
. In this case, the Court determined that the writ was available to correct its own errors, but the same remedy was also available using the preferred method of submitting a motion to the court. Eighty years later, in 1914, the Supreme Court reached a similar conclusion in United States v. Mayer
. Thus, while federal courts confirmed the writ of coram nobis'' was available to federal courts, this remedy was rarely necessary or appropriate in federal courts throughout the nineteenth century for the following two reasons: • Courts generally considered the writ of
coram nobis to be restricted to correct only technical errors, such as discovery of a defendant being under age, evidence that a defendant died before the verdict, or errors made by the
court clerk in the recording of the proceedings.
1946 amendments to the Rules of Civil Procedure In 1946, Congress amended the
Federal Rules of Civil Procedure and specifically abolished the writ of
coram nobis in federal
civil cases. Prior to enactment of these amendments, Congress reviewed all relief previously provided for civil cases through the writ of
coram nobis and adopted those avenues of relief into the rules, thereby obviating the writ in federal civil cases. In the amendment, Congress expressly abolished the writ of
coram nobis in Rule 60(b). Later, in 2007, Congress restructured the format of Rule 60, and moved the language expressly abolishing the writ of
coram nobis in civil proceedings from Rule 60(b) to Rule 60(e) in the Federal Rules of Civil Procedure.
History of post-conviction remedies available to former federal prisoners from 1789 to 1954 Post-conviction remedies for former federal prisoners prior to 1867 In 1790, one year after Congress passed the Judiciary Act establishing federal courts, Congress enacted the
Crimes Act which created the first comprehensive list of federal offenses. From 1790 until 1867, there are few, if any, records of individuals challenging a federal criminal conviction after completion of the prison sentence. Two primary reasons explain the absence of any challenges to a conviction by former federal prisoners: • The Crimes List provided only twenty-three federal crimes. Seven of these crimes, including treason and murder, were punishable by death. In comparison, today there are approximately 3,600 to 4,500 federal statutes that impose criminal punishments and an estimated 500,000 former federal prisoners. Despite this large population, recent cases where a former federal prisoner is able to find new information sufficient to reverse the conviction are exceedingly rare. Thus, the chances of this type of case arising prior to 1867, when the federal prison population was significantly smaller, are even more remote. • There were few
collateral consequences stemming from a conviction at this time. Generally, the reason former convicted felons seek a writ of
coram nobis is to eliminate collateral consequences ensuing from the challenged conviction. Collateral consequences are indirect consequences of a conviction, like loss of voting privileges, loss of professional licenses, inability to qualify for some employment and housing opportunities, and damage to the person's reputation. While direct consequences of a conviction are usually issued by a judge in the
sentencing phase of a case (such as a prison sentence, probation, fines and restitution); indirect consequences of a conviction are not contained within a court sentence.
The Habeas Corpus Act of 1867 The
American Civil War is historically significant with respect to the rights of former federal prisoners in two ways. First, Congress enacted the
Habeas Corpus Act of 1867 to prevent abuses following the civil war. This act expanded the writ of habeas corpus to any person, including former prisoners. Second, states began imposing more collateral consequences upon those convicted of crimes; thus, providing more reasons why a person would want to have a wrongful conviction overturned. The loss of voting privileges was one of the most significant collateral consequences of a felony conviction. In 1800, no state prohibited convicted felons from voting; but by the end of the U.S. Civil War, nearly 80% of state legislatures had passed laws barring felons the right to vote. Slavery was legal in the United States until the 1860s. In the
1860 U.S. presidential election,
Republicans led by
Abraham Lincoln, supported the elimination of slavery. This controversial issue was the catalyst for the American Civil War, which occurred from 1861–1865. On March 3, 1865, President Lincoln signed a
joint resolution declaring wives and children of persons in the armed forces to be free. On December 18, 1865, the
Thirteenth Amendment to the United States Constitution, which abolished
slavery and
involuntary servitude in the United States except "as a punishment for crime whereof the party shall have been duly convicted," became effective. The purpose of the Habeas Corpus Act was to provide "what legislation is necessary to enable the courts of the United States to enforce the freedom of the wife and children of soldiers of the United States, and also to enforce the liberty of all persons". The Habeas Corpus Act of 1867 expanded the jurisdiction of the writ of habeas corpus to "any person". In the 1869 case
Ex parte McCardle, the Supreme Court implied that the act had no custody requirements. The court said that the act "is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction." The court's interpretation of this act seemed to eliminate the writ of
coram nobis in criminal cases because any person challenging a conviction, regardless of whether the person is in prison or not, could have raised the claim through the writ of habeas corpus. Although the act expanded habeas jurisdiction to "any person", it also required that an application for the writ include "facts concerning the detention of the party applying, [and] in whose custody he or she is detained". In the 1885 case
Wales v. Whitney, the Supreme Court read these application requirements as an intent by Congress to restrict the writ of habeas corpus to only those who were physically restrained in jail. Thus, the court again foreclosed the writ of habeas corpus to those no longer in custody. However, in the 1973 case
Hensley v. Municipal Court, San Jose – Milpitas Judicial Dist., Santa Clara County, the Court overruled this decision, calling the
Wales v. Whitney jurisdictional limitation a "manacle" of the habeas corpus statute and an "arcane and scholastic procedural requirement". The
Hensley court then held that the
Wales v. Whitney interpretation of the custody requirements "may no longer be deemed controlling"'. Since
Hensley, no court has reconsidered whether the Habeas Corpus Act applies to former prisoners.
United States v. Morgan (1954) provides writ of coram nobis to former federal prisoners that federal courts have the authority to issue the writ of coram nobis'' to those who are no longer in custody. In 1948, Congress passed legislation that would lead to the official recognition of the writ of
coram nobis in federal courts. The Act of June 25, 1948 combined two pieces of legislation: • Congress passed the Act to organize all laws of the United States into a single source of reference, known as the
United States Code (abbreviated U.S.C.). Any law (or statute) ever passed by Congress can be found in the United States Code. The U.S.C. is divided into 50 titles. Within each title is a chapter, and within each chapter is a section. For example, one of the titles created in the Act was Title 28 – Judiciary and Judicial Procedure. Chapter 153 of this title is the chapter on Habeas Corpus. Section 2255 of this title is the section providing how prisoners can challenge a conviction. In legal documents, this section is commonly abbreviated 28 U.S.C. §2255. • Congress passed the Act to solve a problem with habeas corpus petitions. The Habeas Corpus Act of 1867 instructed prisoners to file a writ of habeas corpus with the district court whose territory included the prison. For example, those imprisoned at
Alcatraz Island, California, were required to file a writ of habeas corpus in the United States District Court for the Northern District of California, even if the prisoner's conviction and sentence originated from a federal court in another district or state. This rule led to administrative difficulties, especially for the five district courts whose territorial jurisdiction included major federal prisons. The Act of June 25, 1948 codified existing federal habeas corpus statutes and judicial habeas practice at 28 U.S.C. §2255 and changed the jurisdiction from the district of confinement to the district of sentence; however, the jurisdictional change was the only change Congress intended. The Act of June 25, 1948 reworded the habeas corpus sections of the United States Code to provide only those individuals in custody (as a result of a criminal conviction in federal court) access to the writ of habeas corpus. For those who had been convicted of a federal crime but were no longer in custody, the question was whether the 1948 Act abolished all post-conviction review of a former prisoner's conviction. In 1952 Robert Morgan, a former federal prisoner who had completed his sentence, petitioned to have his conviction overturned based on information he claimed to be unavailable at the time of his conviction. The district court denied his petition because Morgan was no longer in custody for the conviction he sought to overturn. Morgan appealed that decision. In 1953, the appellate court disagreed with the district court and determined that the writ of
coram nobis was available to Morgan. The government appealed the appellate court's decision to the US Supreme Court. The first question in
United States v. Morgan was whether Congress intended to abolish any post-conviction remedies to former prisoners when it restricted the writ of habeas corpus to prisoners only. If the Supreme Court decided that Congress did not intend to abolish any post-conviction remedies to former prisoners, then the second question in
United States v. Morgan was whether the writ of
coram nobis was available to challenge a conviction after completion of the petitioner's sentence. On January 4, 1954, the Supreme Court announced its decision. The Court first determined that Congress did not intend within the 1948 Act to eliminate all reviews of criminal convictions for petitioners who had completed their sentence. Although the 1948 Act restricted former prisoners from challenging a conviction with a writ of habeas corpus, the Court determined by reviewing the legislative notes that Congress did not intend to abolish post-conviction challenges to a sentence from former prisoners. Justice
Stanley Reed, who authored the
majority opinion for the Court, wrote; [T]he purpose of § 2255 was "to meet practical difficulties" in the administration of federal habeas corpus jurisdiction. ... Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. We know of nothing in the legislative history that indicates a different conclusion. We do not think that the enactment of § 2255 is a bar to this motion, and we hold that the District Court has power to grant [the writ of
coram nobis]. Although Congress did restrict the writ of habeas corpus to prisoners, the Court determined that the All Writs Act provides federal courts the authority to issue a writ of coram nobis to former prisoners whenever new evidence proves the underlying conviction was a result of a fundamental error. Thus,
Morgan officially recognized the writ of coram nobis as the sole means for post-incarceration judicial review of federal convictions.
Source of rules and procedures governing coram nobis proceedings United States v. Morgan provides broad, general guidance to courts on the rules and procedures in
coram nobis proceedings, but since the
Morgan case in 1954, the Supreme Court and Congress seldom provide lower courts additional guidance. Thus, Appellate courts generally fill in the gaps and provide guidance for rules and procedures unclarified by Congress and the Supreme Court; however, the interpretations of rules and procedures of
coram nobis may differ in each appellate court. Thus, for a former federal prisoner who is attempting to decide whether to file a petition for the writ of
coram nobis, it is necessary to understand the source of the rules and procedures. The United States Constitution is the supreme
law of the United States.
Article One of the Constitution creates the legislature and provides Congress the means to create and enact laws.
Article Three of the Constitution creates the judiciary and provides courts the means to interpret laws. Other than the writ of habeas corpus, the Constitution has no language permitting or restricting courts from issuing specific writs, including the writ of
coram nobis.
Congressional enactments The
United States Congress enacts laws or
statutes, and codifies these statutes in the
United States Code. In contrast to the writ of habeas corpus, Congress has seldom enacted statutes regulating the writ of
coram nobis. Statutes enacted by Congress regulating the writ of
coram nobis are: • In 1789, Congress enacted the Judicial Act. The
All Writs Act section of the Judiciary Act provides federal courts the authority to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law". The All Writs Act gives courts the ability to decide which specific writs utilized in English courts are available and appropriate in U.S. federal courts. While Congress provides federal courts the authority to issue writs, it does not provide courts the authority to issue specific writs by name, such as writs of
mandamus or writs of
coram nobis. The code for the All Writs Act is . • In 1946, Congress amended the
Federal Rules of Civil Procedure to abolish the writ of
coram nobis in federal
civil cases. Prior to enacting this statute, Congress reviewed all issues previously addressed by federal courts in writ of
coram nobis proceedings, and incorporated remedies for those issues within the procedures. Rule 60(e) of this Procedure originated from this statute and states, "The following are abolished: bills of review, bills in the nature of bills of review, and writs of
coram nobis,
coram vobis, and
audita querela." • In 2002, Congress enacted Rule 4(a)(1)(C) of the
Federal Rules of Appellate Procedure to resolve a conflict among the federal appellate courts regarding the time limitations to file an appeal from an order granting or denying an application for a writ of error
coram nobis. Prior to this amendment, the federal appellate courts were divided on whether
coram nobis appeals have a 10-day time limit or a 60-day time limit. Rule 4(a)(1)(C) resolved the conflict and established a 60-day time limit to file the notice of appeal from a district court's judgement in a
coram nobis proceeding.
United States Supreme Court decisions Following the Constitution and Congressional statutes, the next highest source for direction and guidance of rules and procedures is the United States Supreme Court. The Supreme Court is the highest federal court. Lower courts, such as federal appellate courts and federal district courts, must follow the decisions of the Supreme Court. The Supreme Court has discretionary appellate jurisdiction, meaning the Court chooses to hear cases for reasons it deems "compelling reasons" (such as resolving a conflict in the interpretation of a federal law or resolving an important matter of law). Federal courts, including the Supreme Court, cannot override any law enacted by Congress unless the law violates the Constitution. Federal courts also cannot repeal a statute unless Congress clearly intended to repeal the statute. In 1954,
United States v. Morgan provides writ of
coram nobis to former federal prisoners. The Court determined
coram nobis relief "should be allowed ... only under circumstances compelling such action to achieve justice". Specifically, the circumstances must include all three of these conditions: • to remedy errors "of the most fundamental character" • when "no other remedy [is] then available" • "sound reasons [exist] for failure to seek appropriate earlier relief". Since 1954, the Supreme Court granted review of only one other
coram nobis case. In 2009, the Court clarified that
Article I military courts have jurisdiction to entertain
coram nobis petitions to consider allegations that an earlier judgment of conviction was flawed in a fundamental respect. Other than providing military courts the authority to issue the writ, the Supreme Court has declined to provide federal courts additional guidance in
coram nobis proceedings. Appellate courts have occasionally criticized the Supreme Court for failing to provide this additional guidance. The Seventh Circuit called the writ of
coram nobis, "a phantom in the Supreme Court's cases" and contends "Two ambiguous decisions on the subject in the history of the Supreme Court are inadequate." The First Circuit wrote that its decision of time limitations "derives from the Morgan Court's cryptic characterization of
coram nobis as a 'step in the criminal case. In another case, the First Circuit writes, "The
metes and bounds of the writ of
coram nobis are poorly defined and the Supreme Court has not developed an easily readable roadmap for its issuance." The Supreme Court receives thousands of petitions each year, but only agrees to hear fewer than 100 of these cases. One of the most compelling reasons for the Supreme Court to accept a case is to resolve a circuit split. Currently, a circuit split exists in
coram nobis cases involving the definition of "adverse consequences". The Supreme Court determined in
United States v. Morgan that a petition for a writ of
coram nobis must demonstrate that adverse consequences exist from the criminal conviction. Some courts of appeals determined adverse consequences occur with any collateral consequence of a conviction while other courts of appeals have limited "adverse consequences" to only a few collateral consequences of a conviction.
Federal district court decisions District courts must abide by congressional statutes, Supreme Court decisions, and decisions of the court of appeals in the federal judicial circuit in which the district court is located. Whenever a district court hears an issue that is not specifically addressed by statute or by case law of a higher court, district courts often "develop the record". In case of an appeal, the higher courts have the district court's reasoned decision as guidance. A developed record not only greatly facilitates the process of appellate review but also ensures that the district court has carefully considered the issues and applied the applicable law.
Criteria for the writ Rules for petitioners Writs of
coram nobis are rare in U.S. federal courts due to the stringent criteria for issuance of the writ.
Morgan established the following criteria required in a
coram nobis petition in order for a federal court to issue the writ: • '
A petition for a writ of coram nobis
in a federal court must seek to vacate a federal criminal conviction.' A writ of
coram nobis is not available in federal courts to challenge a conviction in a state court. The federal government operates its own
coram nobis procedures independent from state courts. Those seeking to attack a state judgment must follow the post-conviction remedies offered by that state. A writ of
coram nobis is also not available for civil cases. Federal Rule of Civil Procedure 60(b) specifically abolished the writ of
coram nobis in civil cases. • '
A petition for a writ of coram nobis
may only be filed after a sentence has been served and the petitioner is no longer in custody.' A person who is on probation is considered "in custody". Anyone filing a
coram nobis petition while in custody will have their petition either denied for lack of jurisdiction or categorized as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (or successive 28 U.S.C. § 2255 if the petitioner has previously filed a § 2255 petition). • '
A petition for a writ of coram nobis
must be addressed to the sentencing court.' To challenge a conviction, the petitioner must send a request for a writ of
coram nobis to the court clerk of the district court where the petitioner's conviction originated. In other words, a petitioner must request for the writ in the sentencing court, rather than any convenient federal court. • '
A petition for a writ of coram nobis
must provide valid reasons for not attacking the conviction earlier.' Petitioners need to show "reasonable diligence", where legitimate justifications exist for not raising challenges to their convictions sooner or through more usual channels (such as a § 2255 petition while in custody). A delay may be considered reasonable when the applicable law was recently changed and made retroactive, when new evidence was discovered that the petitioner could not reasonably have located earlier, or when the petitioner was improperly advised by counsel not to pursue habeas relief. • '
A petition for a writ of coram nobis
must raise new issues of law or fact that could not have been raised while the petitioner was in custody.' In
Morgan, the Court announced the writ was available where no other remedy is available. However, petitioners occasionally misinterpret this statement as an opportunity to re-raise arguments from previous post-conviction petitions. Appellate courts have consistently determined that the writ of
coram nobis cannot be used as a "second chance" to challenge a conviction using the same grounds raised in a previous challenge. • '
Petitioners who filed a § 2255 motion and it was denied while in custody must obtain authorization from the district court in order to file a coram nobis
petition.' Currently, this rule only applies to those in the Eighth Circuit Court of Appeals. In 2018, the Eighth Circuit became the first appellate court to decide whether a petition for writ of
coram nobis is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") restrictions on successive relief as defined in § 2255(h)(1) and (2). The Eighth Circuit held that
coram nobis petitioners who filed a § 2255 motion, while in custody and the motion was denied while the petitioner remained in custody, is restricted by AEDPA from filing a
coram nobis petition without first obtaining authorization from the district court to file the
coram nobis petition. This requirement is different from those in custody who are required to obtain authorization from the
appellate court in order to file a successive § 2255 motion. Other federal appellate courts have yet to issue an opinion on this question. • '
A petition for a writ of coram nobis
must provide adverse consequences which exist from the conviction.' A circuit split exists on this requirement. The
First,
Second,
Third,
Fifth,
Seventh,
Eighth, and
Tenth circuit courts administer a "civil disabilities test" which requires a
coram nobis petitioner to prove that his conviction produced ongoing collateral consequences; however, the
Fourth,
Ninth and
Eleventh Circuits have held that the petitioner need not show that he is suffering from an ongoing "civil disability" because "collateral consequences flow from any criminal conviction". • '
The writ of coram nobis
is an extraordinary remedy to correct errors of the most fundamental character.' The error to be corrected must be an error which resulted in a complete
miscarriage of justice. In other words, the error is one that has rendered the proceeding itself irregular and invalid. Typically, the same errors that are deemed grounds for Section 2255 habeas relief also justify
coram nobis relief. For those claiming actual innocence, a fundamental miscarriage of justice occurs where a constitutional violation has resulted in the conviction of one who is
actually innocent.
Procedural rules in federal district courts • '
District court clerks should file petitions for writs of coram nobis
under the original case number' In
Morgan, the Supreme Court provided that the writ of
coram nobis is a step in the criminal case and not the beginning of a separate civil proceeding. As a result, district courts, such as those in the Ninth Circuit, file petitions for writs of
coram nobis under the original criminal case number. •
District courts should construe incorrectly titled petitions with the appropriate title. Whenever a
federal district court receives an incorrectly labeled or incorrectly titled petition, the court should construe the petition correctly. District courts should construe a
coram nobis petition from a federal prisoner as a petition for writ of habeas corpus. Similarly, district courts should construe a habeas corpus petition from a former federal prisoner as a petition for writ of
coram nobis. Federal courts have determined that a person on probation is still a federal prisoner; therefore, petitioners in this category must file a petition for writ of habeas corpus. A federal prisoner convicted of more than one federal crime may file a petition for writ of
coram nobis to challenge any conviction where the sentence is complete; but the prisoner must file a writ of habeas corpus to challenge any conviction where the sentence is not complete.
Procedural rules in federal appellate courts • '
Appeals from coram nobis
orders are subject to a 60-day filing period.' Until 2002, two provisions in
Morgan divided the
federal appellate courts interpretation on the time limits to file an appeal from a
district court's decision on a
coram nobis petition. First,
Morgan held that "the writ of
coram nobis is a step in the criminal case". Second,
Morgan held that "the writ of
coram nobis is of the same general character as the writ of
habeas corpus". This created a conflict in the courts of appeals regarding the time limits that applied to appeals from
coram nobis orders. In 2002, Congress added language to the Federal Rules of Appellate Procedure that clarified an application for a writ of error
coram nobis is subject to a 60-day filing period. • '
Appeals from coram nobis
orders do not require a certificate of appealability.' In 1996, Congress enacted the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") which included language that limits the power of federal judges to grant motions for habeas relief, including motions for relief pursuant to 28 U.S.C. § 2255. AEDPA requires a
Certificate of Appealability in order to appeal a district court's ruling on a habeas corpus petition. Unlike the writ of habeas corpus, a Certificate of Appealability is not required in order to appeal a district court's ruling on a
coram nobis petition. Neither the
28 U.S.C. § 1651(a) statute making the writ of
coram nobis available in federal courts in criminal matters nor any
Federal Rule of Appellate Procedure requires a certificate of appealability before an appeal may be taken, nor does such a requirement appear in the case law. Some prisoners have attempted to file
coram nobis petitions if AEDPA prevents the petitioner from filing under § 2255. However, federal courts have consistently held that prisoners may not resort to the writ of
coram nobis in order to bypass AEDPA's gatekeeping requirements. • '''The
standard of review from a district court's denial of a
coram nobis petition is similar to the standard of review from a district court's denial of a habeas corpus petition.''' Generally, the standard of review is that any district court's determinations on questions of law are reviewed
de novo, but that district court's determinations on questions of fact are reviewed for clear error (or clearly erroneous error). Under de novo review of federal
coram nobis cases, the appellate court acts as if it were considering the question of law for the first time, affording no deference to the decision of the district court. Under Clear Error review of federal
coram nobis cases, the appellate court must have a "definite and firm conviction that a mistake has been committed" by the district court. ==U.S. state courts==