Coram nobis

The writ of coram nobis (also known as writ of error coram nobis, writ of coram vobis, or writ of error coram vobis) is the name of a legal order allowing a court to reopen and correct its judgment upon discovery of a substantial error not appearing in the records of the original judgement’s proceedings which, if known at the time of judgment, would have prevented the judgment from being pronounced. ^[1] The term “coram nobis” is Latin for “before us” and the meaning of its full name, quae coram nobis resident, is “which [things] remain in our presence”. The writ of coram nobis originated in the English court of common law in the English legal system during the sixteenth century.

The writ of coram nobis still exists today in a few courts in the United States. In 1907, the writ became obsolete in England and replaced by other means of correcting errors; however, the writ survives in the United States in various forms in thirteen states courts, the District of Columbia courts, and US federal courts. For those courts with the authority to issue a writ of coram nobis, the rules and guidelines differ – sometimes significantly. Each state is free to operate its own coram nobis procedures independent of other state courts as well as the federal court system. In other words, the criteria required to issue the writ in one state (or federal) court system, is different from the criteria required to issue the writ in a different court system. A writ can only be granted by the court where the original judgement was entered, so those seeking to correct a judgement must understand the criteria required for that specific court.

History

England

The first known use of the writ of coram nobis in a court of law occurred in England during the 1500s. The writ of coram nobis was identical in nature to a writ of a similar name: the writ of coram vobis.^[2] Writs of coram nobis were issued by the court of King's (or Queen’s) Bench^[3] while writs of coram vobis were issued by the court of Common Pleas.^[4] Both courts were branches of the English judicial system from the 13th century until the late 19th century.

The writ was originally devised in England as a means of rectifying the unjust situation arising from the fact that any allowable method of appeal at common law was limited only to review for errors of law. There were no remedies for errors of fact which were not apparent on the record and unknown to the court at the time of trial, and which would have brought about a different result. Like all writs in those days, it issued out of the Court of Chancery and was addressed to the court in which the judgment had been entered, imploring that tribunal to recognize the error and correct the judgment. Later it was obtained by motion to the trial court itself. The writ’s use in the English courts had few limitations as there were no restrictions whether the petitioner was a prisoner or not and it did not depend on whether the case was criminal or civil.

In England, the writ was abolished in civil cases with the Common Law Procedure Act of 1852^[5] and abolished in criminal cases with the Criminal Appeal Act of 1907.^[6]

United States

The writ became available to courts in the United States on September 24, 1789 when the first session of the First United States Congress adopted the Judiciary Act of 1789. This Act established the federal judiciary. Pursuant to 1 Stat. 81-82 of this Act,

“[courts of the United States] shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. . . ."

Although the Judiciary Act of 1789 gave courts the power to issue writs, the writ of coram nobis developed slowly. The writ was acknowledged as early as 1834 by the United States Supreme Court when it recognized that its counterpart, the writ of coram vobis, might be available in state courts to challenge an error of fact. ^[7] Despite this early acknowledgment, the writ of coram nobis, at least federally, was a rather archaic vehicle for relief. In 1881, the United States Supreme Court recognized the availability of the writ as common-law writ but acknowledged it was not utilized by the courts and even questioned its availability. ^[8]

In 1935, there was a revival of the writ by state courts in criminal proceedings when the United States Supreme Court pointed out that states should have post-conviction procedures broad enough to encompass deprivations of federal constitutional rights. ^[9] The revival in federal courts occurred in 1954 with the groundbreaking United States Supreme Court decision, United States v. Morgan.^[10] Morgan authorizes federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” ^[11]

Before states began to develop statutory postconviction remedies in the late 1940s, this common law remedy was a very important means of correcting errors in trial proceedings, but when states thereafter adopted more modern and comprehensive post-conviction remedies, the writ of coram nobis again became an reclusive method for relief.^[12]

By the 1970s, the majority of states had, in some form or another, replaced or eliminated the need for the writ of coram nobis when the state legislatures enacted statutes providing similar relief previously provided by the writ.^[13] Today, this five-hundred year-old writ survives in only twelve states courts, the District of Columbia courts, and US federal courts. The state courts authorized to issue the writ are Arkansas, California, Connecticut, Maryland, Nebraska, Nevada, New York, South Dakota, Tennessee, Vermont, West Virginia, and Wisconsin. Virginia is the only state authorized to issue the “writ of coram vobis”, a writ identical in the United States to the writ of coram nobis, but different in its English origin.

For those courts with the authority to issue a writ of coram nobis, the definition, rules and regulations of the writ varies – sometimes significantly. Each state is free to operate its own coram nobis procedures independent of other state court as well as the federal court system. For all courts, the writ has a very narrow scope. For example, most courts authorized to issue the writ require that the petitioner must be a person who 1) was convicted and sentenced with a criminal felony, 2) is not in prison under that sentence, 3) is not on probation under that sentence, 4) finds new evidence which could not have been discovered while in prison or on probation, 5) and can show the new evidence would have prevented the conviction and sentence if it had been known at that time. New evidence sufficient to change the conviction’s outcome is rarely discovered after a person has completed a sentence; and this is one of the main reasons why there are so few successful petitions for the writ of coram nobis.

Application of the writ of Coram Nobis in US Federal Courts

History of the writ of coram nobis in federal courts

The writ of coram nobis is not specifically authorized by any federal statute; however, the writ of coram nobis is authorized as part of the Judiciary Act of 1789 which provides “That all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute.”^[14]

In 1911, the Judicial Code was established to create a single code encompassing all statutes related to the judiciary. The authorization of the federal judiciary to issue writs was modified into 28 U. S. C. § 1651 (a) and is now commonly known as the “all-writs section of the Judicial Code”. Unlike the writ of habeas corpus (which has been authorized and regulated by Congress in four important acts),^[15] the writ of coram nobis is not specifically provided by any Congressional act, thus this writ is allowed pursuant to 28 U. S. C. § 1651(a). Under the all-writs section,

"The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."^[16]

In 1914, the Supreme Court recognized that "The coram nobis writ allows a court to vacate its judgments 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.” ^[17]

In 1946, Congress enacted amendments to the Federal Rules of Civil Procedure 60(b) which specifically abolished the writ of coram nobis in civil cases.^[18] With the abolishment of the writ in civil cases, the end of the writ of coram nobis in federal courts seemed to be at hand because there did not seem to be any need to the writ in criminal cases either. The habeas corpus rules at that time provided a remedy for jurisdictional and constitutional errors at the trial at any time, regardless of whether the person was incarcerated or had completed their sentence. In fact, one year later, in 1947, the Supreme Court expressed “it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate.”^[19] However, the end of the writ in federal courts was short-lived.

In 1948, Congress enacted the Act of June 25, 1948 (the "1948 Act") which codified existing federal habeas corpus statutes and judicial habeas practice at 28 U.S.C. sections 2241 to 2255. The 1948 Act provided only those individuals in-custody (as a result of a criminal conviction in federal court) access to the writ of habeas corpus.^[20] Thus, for those who had been convicted of a federal crime but were no longer in-custody, there was only one option to challenge the constitutionality of their conviction: a petition for writ of coram nobis.

In 1954, the Supreme Court decided the seminal case United States v. Morgan^[21] which officially revived the writ of coram nobis as the sole means for post-incarceration judicial review of federal convictions.^[22] In Morgan, the court provided the criteria which must be met in order for a federal court to issue a writ of coram nobis.

In 2009, the Supreme 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.^[23]

Criteria for a writ of coram nobis in federal courts

Writs of coram nobis are rare in US federal courts due to the writ’s stringent criteria. 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 directly attack a state criminal judgment. The federal government operates its own coram nobis procedures independent from state courts. Those seeking to attack a state judgement 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 must be directed to the sentencing court. The petitioner must request the writ from the same court which held the sentencing for the conviction being challenged in the petition. In other words, a petitioner must request for the writ in the sentencing court, rather than any convenient federal court.” ^[24]

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”.^[25] 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.) In Morgan, the Court announced the writ was available where “no other remedy" is available.” However, this statement has occasionally been misinterpreted as an opportunity to re-raise arguments from other post-conviction attempts for relief. The writ of coram nobis cannot be used to as a “second chance” to challenge a conviction using the same grounds raised in a previous challenge. ^[26]

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.^[27]

A petition for a writ of coram nobis must provide adverse consequences which exist from the conviction. The circuit courts are currently split 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.”^[28] The Sixth circuit has granted coram nobis relief without mentioning this requirement.^[29]

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.^[30] Typically, the same errors that are deemed grounds for Section 2255 habeas relief also justify coram nobis relief.^[31] For those claiming actual innocence, a fundamental miscarriage of justice occurs where a constitutional violation has probably resulted in the conviction of one who is actually innocent. ^[32]

Comparisons between the writs of coram nobis and habeas corpus

The writ of coram nobis has many similarities in origin and purpose with the writ of habeas corpus. Habeas corpus is a Latin phrase meaning “produce the body”, where the English courts ordered states to “produce the body” or “deliver the prisoner” to the court. Generally, anyone attacking their conviction must either file a writ of habeas corpus if they are currently in-custody from a federal sentence or file a writ of coram nobis if they are no longer in-custody. Those who are in-custody cannot file a writ of coram nobis and those who are no longer in-custody cannot file a writ of habeas corpus.

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. In other words, petitions for writs of coram nobis are filed under the original criminal case number, whereas writs of habeas corpus are filed under a new civil case number. Morgan also provided that the writ of coram nobis is "of the same general character" as the writ of habeas corpus under 28 U.S.C. § 2255. Therefore, courts must review coram nobis petitions in the same manner as habeas petitions.

There are two provisions in Morgan which has divided the circuit courts on the writ’s 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” The Second, Fifth, Sixth, Seventh, and Tenth circuit courts have held that the civil time limit should apply to coram nobis appeals because the writ of coram nobis "of the same general character" as the writ of habeas corpus under 28 U.S.C. § 2255. Habeas corpus petitions follow time limit guidelines of the civil rule which provides a 60-day time period to file an appeal.^[33] However, the Eighth and Ninth circuit courts relied upon the statement in Morgan that a writ of coram nobis is a "step in a criminal case" and reasoned that it should therefore be governed by the criminal time limit for filing appeals. Criminal rules of appellate procedure only provide a 10-day time period to file an appeal.^[34]

Unlike the writ of habeas corpus, a Certificate of Appealability (COA) is not required in order to appeal a district court’s ruling of 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.^[35]

Application of the writ of Coram Nobis in US State Courts

Only thirteen state courts and District of Columbia courts recognize the availability of writs of coram nobis in their courts. Each state is free to operate its own coram nobis procedures independent of other state courts as well as the federal court system. The writ of coram nobis is not available in a majority of states because those states have enacted uniform post-conviction acts that provide a streamlined, single remedy for obtaining relief from a judgment of conviction, and that remedy is available to petitioners who are no longer in custody. States that have replaced writs of coram nobis with remedies within their post-conviction proceedings are also independent of other state courts as well as the federal court system. These proceedings enacted by state legislatures may either be more or less stringent than the writs it replaced or the post-conviction proceedings of other states.

Availability of the writ of coram nobis in state courts

The following table provides whether each state’s courts are authorized to issue a writ of coram nobis (or a writ of coram vobis), or provides the state statute which replaced or abolished the writ .

State	Writ of Coram Nobis replaced/abolished by
Alabama	Alabama Rules of Criminal Procedure, § 32.1[36]
Alaska	Alaska Criminal Rule 35.1[37]
Arizona	Arizona Rules of Criminal Procedure 32.1[38]
Arkansas	Coram Nobis recognized by Arkansas state courts
California	Coram Nobis recognized by California state courts
Colorado	Colorado Rules of Criminal Procedure 35[39]
Connecticut	Coram Nobis recognized by Connecticut state courts
Delaware	Delaware Superior Court Criminal Rule 61[40]
District of Columbia	Coram Nobis recognized by District of Columbia courts
Florida	Florida Rule of Criminal Procedure 3.850[41]
Georgia	Official Code of Georgia Annotated § 5-6-35 (a) (7) [42]
Hawaii	Hawai’i Rules of Penal Procedure Rule 40(a)(1) [43]
Idaho	Idaho Code Annotated § 19-4901[44]
Illinois	Illinois Postconviction Hearing Act (Act) §9-2 Section 2-1401[45]
Indiana	Indiana Rules of Post-Conviction Procedure § 1[46]
Iowa	Iowa Code Annotated § 822.1[47]
Kansas	Kansas Statutes Annotated 60-260[48]
Kentucky	Kentucky Rules of Civil Procedure CR 60.02[49]
Louisiana	Louisiana Code of Criminal Procedure Art. 930.8[50]
Maine	Maine Revised Statutes 15 § 2122, 2124[51]
Maryland	Coram Nobis recognized by Maryland state courts
Massachusetts	Massachusetts Rules of Criminal Procedure Rule 30 (a) [52]
Michigan	Michigan Court Rules 6.502(C)(3) [53]
Minnesota	Minnesota statute. § 590.01 subd. 2[54]
Mississippi	Mississippi Code Annotated section 99-39-5[55]
Missouri	Missouri Rules of Criminal Procedure Rule 29.15[56]
Montana	Montana Code Annotated § 46–21-101[57]
Nebraska	Coram Nobis recognized by Nebraska state courts
Nevada	Coram Nobis recognized by Nevada state courts
New Hampshire	New Hampshire Revised Statutes 651:5[58]
New Jersey	New Jersey Court Rule 3:22[59]
New Mexico	New Mexico Rules Annotated Rule 1-060(B)(6) [60]
New York	Coram Nobis recognized by New York state courts
North Carolina	North Carolina General Statutes § 15A-1411 (2009) [61]
North Dakota	North Dakota Century Code § 29-32.1-01 (2006) [62]
Ohio	Ohio Revised Code Annotated § 2953.21[63]
Oklahoma	Oklahoma Statutes Title 22, § 1080[64]
Oregon	Oregon Revised Statutes § 138.510 (2011) [65]
Pennsylvania	Pennsylvania Consolidated Statutes 42 § 9542[66]
Rhode Island	Rhode Island General Laws § 10-9.1-1 (2012) [67]
South Carolina	South Carolina Code of Laws Annotated § 17-27-20 (2003) [68]
South Dakota	Coram Nobis recognized by South Dakota state courts
Tennessee	Coram Nobis recognized by Tennessee state courts
Texas	Texas Code of Criminal Procedure article 11.05[69]
Utah	Utah Code Annotated §§ 78B-9-102, -104[70]
Vermont	Coram Nobis recognized by Vermont state courts
Virginia	Coram Vobis recognized by Virginia state courts
Washington	Washington Rules of Appellate Procedure 16.4(b) [71]
West Virginia	Coram Nobis recognized by West Virginia state courts
Wisconsin	Coram Nobis recognized by Wisconsin state courts
Wyoming	Wyoming Rules of Criminal Procedure Rule 35[72]

Arkansas

Arkansas state courts may issue a writ of coram nobis for only four types of claims: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. The Supreme Court of Arkansas provides the following background and guidelines of coram nobis petitions for state courts in Arkansas (Citations and quotes removed):^[73]

The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition.

Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied. The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts relied upon and not merely state conclusions as to the nature of such facts.

The essence of the writ of coram nobis is that it is addressed to the very court that renders the judgment where injustice is alleged to have been done, rather than to an appellate or other court. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A writ of coram nobis is available to address certain errors of the most fundamental nature that are found in one of four categories:

1. Insanity at the time of trial,
2. A coerced guilty plea,
3. Material evidence withheld by the prosecutor, or
4. A third-party confession to the crime during the time between conviction and appeal. ^[74]

California

California state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of California provided the following background and guidelines of coram nobis petitions for state courts in California (Citations and quotes removed):^[75]

The writ of coram nobis is a non-statutory, common law remedy whose origins trace back to an era in England in which appeals and new trial motions were unknown. Far from being of constitutional origin, the proceeding designated " coram nobis " was contrived by the courts at an early epoch in the growth of common law procedure to provide a corrective remedy because of the absence at that time of the right to move for a new trial and the right of appeal from the judgment. The grounds on which a litigant may obtain relief via a writ of coram nobis are narrower than on habeas corpus. 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.

The principal office of the writ of coram nobis was to enable the same court which had rendered the judgment to reconsider it in a case in which the record still remained before that court. The most comprehensive statement of the office and function of this writ which has come to our notice is the following: The office of the writ of coram nobis is to bring the attention of the court to, and obtain relief from, errors of fact, such as the death of either party pending the suit and before judgment therein; or infancy, where the party was not properly represented by guardian, or coverture, where the common-law disability still exists, or insanity, it seems, at the time of the trial; or a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake; these facts not appearing on the face of the record, and being such as, if known in season, would have prevented the rendition and entry of the judgment questioned.

The writ of coram nobis does not lie to correct any error in the judgment of the court nor to contradict or put in issue any fact directly passed upon and affirmed by the judgment itself. If this could be, there would be no end of litigation. The writ of coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment; and which without fault or negligence of the party, was not presented to the court. It is not a writ whereby convicts may attack or relitigate just any judgment on a criminal charge merely because the unfortunate person may become displeased with his confinement or with any other result of the judgment under attack.

With the advent of statutory new trial motions, the availability of direct appeal, and the expansion of the scope of the writ of habeas corpus, writs of coram nobis had, by the 1930's, become a remedy practically obsolete except in the most rare of instances and applicable to only a very limited class of cases. The statutory motion for new trial has, for most purposes, superseded the common law remedy; and, until recent years, coram nobis was virtually obsolete in California.

The seminal case setting forth the modern requirements for obtaining a writ of coram nobis is ‘’People v. Shipman’’^[76] which stated the writ of coram nobis may be granted only when three requirements are met:

1. The petitioner must show that some fact exists which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.
2. The petitioner must show that the newly discovered evidence does not go to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial. This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied.
3. The petitioner `must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.

Several aspects of the test set forth in Shipman illustrate the narrowness of the remedy. Because the writ of 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. Moreover, the allegedly new fact must have been unknown and must have been in existence at the time of the judgment.

For a newly discovered fact to qualify as the basis for the writ of coram nobis, courts look to the fact itself and not its legal effect. It has often been held that the motion or writ is not available where a defendant voluntarily and with knowledge of the facts pleaded guilty or admitted alleged prior convictions because of ignorance or mistake as to the legal effect of those facts.

Finally, the writ of coram nobis is unavailable when a litigant has some other remedy at law. A writ of coram nobis is not available where the defendant had a remedy by (a) appeal or (b) motion for a new trial and failed to avail himself of such remedies. The writ of coram nobis is not a catch-all by which those convicted may litigate and relitigate the propriety of their convictions ad infinitum. In the vast majority of cases a trial followed by a motion for a new trial and an appeal affords adequate protection to those accused of crime. The writ of coram nobis serves a limited and useful purpose. It will be used to correct errors of fact which could not be corrected in any other manner. But it is well-settled law in this and in other states that where other and adequate remedies exist the writ is not available.

The writ was issued by state courts in California in these types of situations:

• Where the defendant was insane at the time of trial and this fact was unknown to court and counsel.
• Where defendant was an infant and appeared by attorney without the appointment of a guardian or guardian ad litem.
• Where the defendant was a feme covert and her husband was not joined.
• Where the defendant was a slave and was tried and sentenced as a free man.
• Where the defendant was dead at the time judgment was rendered.
• Where default was entered against a defendant who had not been served with summons and who had no notice of the proceeding.
• Where counsel inadvertently entered an unauthorized appearance in behalf of a defendant who had not been served with process.
• Where a plea of guilty was procured by extrinsic fraud.
• Where a plea of guilty was extorted through fear of mob violence.
• Where defendants and their counsel were induced by false representations to remain away from the trial under circumstances amounting to extrinsic fraud.

By contrast, the writ of coram nobis was found unavailable by state courts in California in the following situations:

• Where trial counsel improperly induced the defendant to plead guilty to render him eligible for diversion and the trial court eventually denied diversion.
• Where the defendant pleaded guilty to having a prior felony conviction when he was eligible to have the prior reduced to a misdemeanor.
• Where the defendant discovered new facts that would have bolstered the defense already presented at trial. The court concluded that although the new facts would have been material and possibly beneficial to the defendant at trial, they would not have precluded entry of the judgment.
• Where the defendant mistakenly believed his plea to second degree murder meant he would serve no more than 15 years in prison.
• Where the defendant claimed neither his attorney nor the court had advised him before he pleaded that his convictions would render him eligible for civil commitment under the Sexually Violent Predators Act (SVPA)
• Where the defendant challenged the legality of his arrest, the identity of the informant, and the failure of the court to make findings on the prior convictions. Coram nobis denied on the ground that "all of these matters could have been raised on appeal.^[77]

Connecticut

Connecticut state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Connecticut provided the following background and guidelines of coram nobis petitions for state courts in Connecticut (Citations and quotes removed):^[78]

A writ of coram nobis is an ancient common-law remedy which is authorized only by the trial judge. The same judge who presided over the trial of the defendant is the only judge with the authority to entertain a writ of coram nobis filed by this particular defendant would be, in many cases, impracticable. If the particular judge who presided over a case was not available to entertain a writ for any number of reasons, such as retirement or reassignment, such an interpretation effectively could deprive a party of the remedy of a writ of coram nobis, because no other judge would have subject matter jurisdiction over the writ.

The writ must be filed within three years of conviction. This limitation is jurisdictional, so trial courts must dismiss petitions filed after the three-year limitations for lack of jurisdiction. This limitations period for coram nobis petitions has been the law in Connecticut since the 1870’s.^[79]

The facts must be unknown at the time of the trial without fault of the party seeking relief. The writ must present facts, not appearing in the record, which, if true, would show that such judgment was void or voidable.

A writ of coram nobis lies only in the unusual situation in which no adequate remedy is provided by law. Moreover, when habeas corpus affords a proper and complete remedy the writ of coram nobis will not lie. Prisoners who are in custody may only attack their conviction or sentence through habeas corpus and they are not eligible to file writs of coram nobis.^[80]

District of Columbia

District of Columbia courts were established in 1970. The court’s authority is derived from the United States Congress rather than from the inherent sovereignty of the states. District of Columbia courts can issue the writ of coram nobis to correct either errors of fact or errors of law. The District of Columbia Court of Appeals provided the following background and guidelines of coram nobis petitions for state courts in Connecticut (Citations and quotes removed):^[81]

The writ of coram nobis in the District of Columbia is similar to the US Federal Court’s interpretation of the writ where the writ of coram nobis is an extraordinary remedy that can be used to correct a legal or factual error.

The primary function of the writ of coram nobis at common law was to correct errors of fact on the part of the trial court, not attributable to the negligence of the defendant, when the errors alleged were of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid. The writ of provides a petitioner the opportunity to correct errors of fact not apparent on the face of the record and unknown to the trial court. In reviewing a petition for such a writ, there is a presumption that the proceeding in question was without error, and the petitioner bears the burden of showing otherwise.

The writ of coram nobis is available under the All Writs Act, 28 U.S.C. 1651(a) (2006), and the petitioner must show:

1. The trial court was unaware of the facts giving rise to the petition;
2. The omitted information is such that it would have prevented the sentence or judgment;
3. The petitioner is able to justify the failure to provide the information;
4. The error is extrinsic to the record; and
5. The error is of the most fundamental character. ^[82]

Maryland

Maryland state courts can issue the writ of coram nobis to correct either errors of fact or errors of law. The Maryland Court of Appeals provided the following background and guidelines of coram nobis petitions for state courts in Maryland (Citations and quotes removed):^[83]

A convicted petitioner is entitled to relief through the common law writ of coram nobis if and only if:

1. The petitioner challenges a conviction based on constitutional, jurisdictional, or fundamental grounds, whether factual or legal;
2. The petitioner rebuts the presumption of regularity that attaches to the criminal case;
3. The petitioner faces significant collateral consequences from the conviction;
4. The issue as to the alleged error has not been waived or "finally litigated in a prior proceeding, [absent] intervening changes in the applicable law";
5. The petitioner is not entitled to another statutory or common law remedy (for example, the petitioner cannot be incarcerated in a State prison or on parole or probation, as the petitioner likely could then petition for post-conviction relief.)^[84]

In 2015, the Maryland Code (2014 Supp.), § 8-401 of the Criminal Procedure Article ("CP § 8-401") clarified that the failure to seek an appeal in a criminal case may not be construed as a waiver of the right to file a petition for writ of coram nobis.^[85]

Appeals from the denial of a lower state court may be appealed. A writ of coram nobis remains a civil action in Maryland, independent of the underlying action from which it arose. As a coram nobis case is an independent civil action, an appeal from a final judgment in such an action is authorized by the broad language of the general appeals statute, Code § 12-301 of the Courts and Judicial Proceedings Article. An appeal under the general appeals statutes would lie from a final trial court judgment in a coram nobis proceeding. Although the Post Conviction Procedure Act precludes appeals in coram nobis cases brought by an incarcerated person "challenging the validity of incarceration under sentence of imprisonment," neither the Post Conviction Procedure Act nor any other statute which has been called to our attention restricts the right of appeal for a convicted person who is not incarcerated and not on parole or probation, who is suddenly faced with a significant collateral consequence of his or her conviction, and who can legitimately challenge the conviction on constitutional or fundamental grounds. Such person should be able to file a motion for coram nobis relief regardless of whether the alleged infirmity in the conviction is considered an error of fact or an error of law.^[86]

Nebraska

Nebraska state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Nebraska provided the following background and guidelines of coram nobis petitions for state courts in Nebraska (Citations and quotes removed):^[87]

The common-law writ of coram nobis exists in Nebraska under Nebraska Revised Statutes § 49-101 (Reissue 2010), which adopts English common law to the extent that it is not inconsistent with the Constitution of the United States, the organic law of this state, or any law passed by the Nebraska Legislature.

The purpose of the writ of coram nobis is to bring before the court rendering judgment matters of fact which, if known at the time the judgment was rendered, would have prevented its rendition. It enables the court to recall some adjudication that was made while some fact existed which would have prevented rendition of the judgment but which, through no fault of the party, was not presented.

The burden of proof in a proceeding to obtain a writ of coram nobis is upon the applicant claiming the error, and the alleged error of fact must be such as would have prevented a conviction. It is not enough to show that it might have caused a different result.

A writ of coram nobis reaches only matters of fact unknown to the applicant at the time of judgment, not discoverable through reasonable diligence, and which are of a nature that, if known by the court, would have prevented entry of judgment. The writ of coram nobis is not available to correct errors of law.^[88]

Nevada

Nevada state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Nevada provided the following background and guidelines of coram nobis petitions for state courts in Nevada (Citations and quotes removed):^[89]

Nevada Revised Statute 1.030, recognizes the applicability of the common law, and the all-writs language in Article 6, Section 6 of the Nevada Constitution. This statute provides that the common law of England, so far as it is not repugnant to or in conflict with the Constitution and laws of the United States, or the Constitution and laws of Nevada, shall be the rule of decision in all the courts of Nevada. The post-conviction remedy authorized by Nevada statute, NRS 34.724(2)(b), provides that the petitioner must be in actual custody or have suffered a criminal conviction and not completed the sentence imposed pursuant to the judgment of conviction. Therefore, this statute is not available for those who are no longer in custody. Therefore, the common-law writ of coram nobis is available for a person who is not in custody on the conviction being challenged.

The writ of coram nobis may be used to address errors of fact outside the record that affect the validity and regularity of the decision itself and would have precluded the judgment from being rendered. The writ is limited to errors involving facts that were not known to the court, were not withheld by the defendant, and would have prevented entry of the judgment. A factual error does not include claims of newly discovered evidence because these types of claims would not have precluded the judgment from being entered in the first place. A claim of ineffective assistance of counsel also involves legal error and is therefore not available.

Any error that was reasonably available to be raised while the petitioner was in custody is waived, and it is the petitioner's burden on the face of his petition to demonstrate that he could not have reasonably raised his claims during the time he was in custody.

In filing the petition in the trial court is a step in the criminal process; however, the writ of coram nobis should be treated as a civil writ for appeal purposes. The writ is a discretionary writ and so a lower court's ruling on a petition for the writ is reviewed under the abuse of discretion standard in the appellate court.^[90]

New York

New York state courts may issue a writ of coram nobis only for claims of ineffective assistance of appellate counsel. The Court of Appeals of the State of New York provided the following background and guidelines of coram nobis petitions for state courts in New York (Citations and quotes removed):^[91]

In New York courts, the writ of coram nobis is available but its application is considerably different than the writ’s application in other courts. In 1971, most of the common-law, coram nobis types of relief were abrogated when the New York Criminal Procedure Law § 440.10 (CPL 440.10) was enacted to embrace the deprivation of constitutional rights outside the record; however, the specific category of “ineffective assistance of appellate counsel” was not specified by the Legislature at the time of its enactment.

The US constitution provides that a criminal defendant must be provided a right to appeal an unconstitutionally deficient performance of counsel. Consistent with the demands of due process, a criminal defendant must be allowed to assert that a right to appeal was extinguished due solely to the unconstitutionally deficient performance of counsel in failing to file a timely notice of appeal.

CPL 460.30 contains a significant restriction as it imposes a one-year limit for the filing of a motion for leave to file a late notice of appeal. Consistent with the due process mandate, CPL 460.30 should not categorically bar an appellate court from considering that a defendant's application to pursue an untimely appeal whenever:

1. An attorney has failed to comply with a timely request for the filing of a notice of appeal and
2. The defendant alleges that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30.

Whenever these two criteria are met, the proper procedure is a coram nobis application to the Appellate Division. After CPL 440.10 was enacted, common-law coram nobis proceeding brought in the proper appellate court became the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel.^[92]

South Dakota

South Dakota state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of South Dakota provided the following background and guidelines of coram nobis petitions for state courts in South Dakota (Citations and quotes removed):^[93]

The writ of coram nobis has traditionally been used to present facts extrinsic to the record in circumstances where no other remedy was available. An elementary restriction to the writ is that it will not permit a new examination of questions previously determined. Nor may it be employed as an alternative for direct appeal or habeas corpus.

In South Dakota, the jurisdiction of a court to grant relief under coram nobis is of limited scope. Any proceeding which is challenged by the writ is presumed to be correct and the burden rests on its petitioner to show otherwise. Relief will be granted only when circumstances compel such action to achieve justice. With one significant exception, coram nobis deals only with errors of fact. The exception is that the writ can reach certain constitutionally significant errors like jurisdictional defects.

The writ permits review of new evidence only if it was discovered after entry of the judgment and could not have been discovered and produced during the period when a statutory remedy was available. Any factual errors which have been, could have been, or should have been reviewed with another available remedy cannot be examined in coram nobis. On the other hand, facts incapable of being brought out earlier due to fraud or coercion may form the basis for coram nobis relief.

Those seeking coram nobis relief must carefully study the procedural history of the case, because past events control over which issues may or may not be raised and trial records have to be examined in order to ascertain whether a claim is barred.^[94]

Tennessee

Tennessee courts may issue a writ of coram nobis only for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial. The Supreme Court of Tennessee provided the following background and guidelines of coram nobis petitions for state courts in Tennessee (Citations and quotes removed):^[95]

Starting in the early 1800’s, the writ of coram nobis was recognized and utilized under the common law in Tennessee. The writ was used primarily in civil cases — similar to the use of the writ in other states. The writ was also available in criminal actions in Tennessee, although rarely sought.

In 1858, the Tennessee General Assembly enacted a statute which codified the procedure for seeking the writ of coram nobis, expanded the grounds upon which a claim for relief under the writ could be based, and placed a time limitation upon its filings which provided that the writ of coram nobis may be had within one year from the rendition of the judgment. Both at common law and under the 1858 statutory enactment, however, the writ of coram nobis was limited in scope to civil proceedings.

In 1955 the General Assembly extended the writ of coram nobis to criminal proceedings. The relief available extended only to "errors dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding."^[96] The statute provided only that criminal coram nobis proceedings were to be governed by the same rules and procedure applicable to the writ of coram nobis in civil cases.

Though the writ of coram nobis in civil cases was superseded when Rule 60 of the Tennessee Rules of Civil Procedure became effective in 1971, the adoption of Rule 60 did not supersede the statute which extended the writ as an available remedy in criminal proceedings. Indeed, currently provides as follows:

Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.^[97]

Before granting a writ of coram nobis, the trial court must be satisfied with the reliability of the newly discovered evidence and determine that the defendant is without fault in timely discovering such evidence. The trial court must then review the evidence presented at trial and at the coram nobis proceeding and determine whether a reasonable basis exists for concluding that had the new evidence been presented at trial, the result of the proceedings might have been different. Coram nobis claims are not easily resolved on the face of the petition and often require a hearing; however, an evidentiary hearing is not statutorily required in every case.

The writ of coram nobis is not available for attacking a guilty plea.^[98]

The decision whether to grant or deny a petition for writ of coram nobis lies within the discretionary authority of the trial court. If appealed, the appellate courts review such the decision for an abuse of discretion. An appellate court will find an abuse of discretion only when the trial court applied incorrect legal standards, reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice to the complaining party.

When a convicted defendant files a petition for writ of coram nobis in the trial court, he or she must simultaneously file a motion in the appellate court to stay the appeal as of right until conclusion of the coram nobis proceeding in the trial court. A petition for writ of coram nobis is untimely unless filed within one year of the time a judgment becomes final in the trial court. It is clear that a timely petition for writ of coram nobis will almost always be filed while an appeal is pending. Pendency of the appeal does not divest the trial court of jurisdiction to consider the petition for writ of coram nobis since a suit for writ of coram nobis is a new action. On the same day that a petition for writ of coram nobis is filed in the trial court, the petitioner should also file in the appellate court a motion requesting that the appellate proceedings be stayed pending the trial court's decision on the writ of coram nobis. A copy of the petition should be attached to the motion. Under most circumstances, the motion to stay should be granted.^[99]

Vermont

Vermont state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Vermont provided the following background and guidelines of coram nobis petitions for state courts in Vermont (Citations and quotes removed):^[100]

The writ was designed to fill this gap somewhat to correct errors of fact "affecting the validity and regularity of the judgment. It was commonly used in civil cases, but seldom in criminal cases. Vermont decisions have long recognized the general availability of coram nobis. In 1830, the Vermont Supreme Court explained that a writ of coram nobis will lie for error in fact, but it does not lie for error in law. The function of the writ is to call to the attention of the trial court facts and circumstances outside the record which would have precluded the entry of judgment had such facts been known and established at the time of the conviction.

In 1971, the writ was explicitly abolished in civil cases following adoption of the Vermont Rules of Civil Procedure. When the PCR statute was enacted, it provided a means for those "in custody under sentence" to vacate, set aside or correct an invalid sentence, but the statute does not mention the writ of coram nobis. Similarly, the criminal rules set out various forms of post-judgment relief do not address coram nobis explicitly. Because the Vermont PCR statute and the criminal rules are silent on the issue, the common law remedy of coram nobis is a viable means for challenging criminal convictions. It may be used when no other remedy is available, but may not be used to supplant relief through direct appeal, post-judgment motion or PCR petition.

The Vermont Supreme Court has provided that a petition for a writ of coram nobis must be brought in the court that rendered judgment; however, the court has not reached the question as to the scope of the writ of coram nobis in state courts.^[101]

Virginia

Virginia state courts strictly follow the common-law definition of the writ of coram vobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Virginia provided the following background and guidelines of coram vobis petitions for state courts in Virginia (Citations and quotes removed):^[102]

In Virginia, state courts use the term “coram vobis” instead of “coram nobis”, although both writs are identical in nature. Virginia state courts are the last remaining courts known to incorporate the five-hundred year-old term, “writ of coram vobis.”

The term “coram vobis” is Latin for “before you”. The full name is quae coram vobis resident ("Let the record remain before you"). It was called coram vobis (before you — the king's justices) in Common Pleas, where the king was not supposed to reside. It was called coram nobis (before us) in King's Bench because the king was supposed to preside in person in that court. The difference related only to the form appropriate to each court and the distinction disappeared in the United States when the need for the distinction ended.

In 1776, Virginia incorporated all of English common law by an ordinance of the Virginia convention. With the incorporation of English common law, Virginia recognized two ways in which a litigant could approach a trial court to challenge a final judgment. This could be done by 1) motion or 2) writ of coram nobis. The first Virginia case to recognize that a motion could be used to achieve the result of the writ of coram nobis was the 1795 decision in ‘’Gordon v. Frazier’’.^[103] In ‘’Gordon’’, the use of a motion to have a trial court revisit a final judgment was the general practice at that time, even though the writ of coram nobis was available for the same purpose. It appears that the reason litigants used a motion to challenge a judgment, instead of the writ, was because filing a motion was less expensive than instituting a new proceeding by filing a petition for a writ. The court in Gordon summarized this matter as follows:

This case tho' depending upon a practice not common in this country is by no means a difficult one. I have no doubt but that the error complained of might have been corrected by the same court upon motion, at a subsequent term; but I should not for that reason reverse the judgment, since the party having preferred a writ of error coram vobis had a right to proceed in that way, tho' a shorter, and much less expensive mode might have been pursued.^[104]

In 1957, the writ was substantially limited by the General Assembly through Code § 8.01-677, which provides that "[f]or any clerical error or error in fact for which a judgment may be reversed or corrected on writ of error coram vobis, the same may be reversed or corrected on motion, after reasonable notice, by the court." In other words, the Code restricted a writ of error coram vobis only to clerical errors and certain errors in fact.

The principal function of the writ in Virginia 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. In order to qualify for a writ of coram vobis:

• The petitioner must attack his conviction for an error of fact not apparent on the record.
• The discovery of factual errors must not be attributable to the applicant's negligence.
• The facts, if known by the court at the time of trial, would have prevented rendition of the judgment.^[105]

West Virginia

West Virginia state courts can issue the writ of coram nobis to correct either errors of fact or errors of law. The Supreme Court of Appeals of West Virginia provided the following background and guidelines of coram nobis petitions for state courts in West Virginia (Citations and quotes removed):^[106]

The writ of coram nobis is only granted as a remedy of last resort where an error is of the most fundamental character and there exists no other available remedy. The writ is narrowly limited to extraordinary cases presenting circumstances compelling its use to achieve justice.

In West Virginia, the common law writ of coram nobis was abolished in civil cases in 1960 pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure. No provision equivalent to the relief mechanism of Rule 60(b) exists in the West Virginia Rules of Criminal Procedure.

West Virginia courts are authorized to issue the writ in criminal proceeding using criteria similar to the criteria established by the US Fourth Circuit Court of Appeal. The criteria established a four-part test. A petitioner seeking this relief must show that:

1. A more usual remedy is not available. In other words, 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.
2. Valid reasons exist 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.
3. Adverse consequences exist from the conviction; however, West Virginia courts have not yet established what constitutes “adverse consequences.”
4. The error is 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.^[107]

Wisconsin

Wisconsin state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Court of Appeals of Wisconsin provided the following background and guidelines of coram nobis petitions for state courts in Wisconsin (Citations and quotes removed):^[108]

The writ of coram nobis is a common law remedy which empowers the trial court to correct its own record. The writ of coram nobis was given statutory recognition by the enactment of the 1949 Revision of the Wisconsin Code of Criminal Procedure. That section 958.07 of this statute provided:

"The writ of coram nobis may be issued by the trial court at any time upon the verified petition of the defendant showing sufficient grounds therefor, which may be supported by one or more affidavits. The petition and writ shall be served on the district attorney, who may move to quash the writ or make return thereto, or both. The court may hear and determine the writ either upon the affidavits submitted by the parties or upon testimony or both, in its discretion. The party aggrieved may have the determination of the trial court reviewed by the supreme court upon appeal or writ of error."

The Advisory Committee's comment to section 958.07 expressly acknowledged the fact that sec. 958.07 merely gave "statutory recognition to the common-law writ of coram nobis." This statute prescribed the procedure to be followed in granting the writ of coram nobis but did not state the grounds for issuing the writ, leaving that aspect to be determined from the cases.

The courts have established that the writ of coram nobis is of very limited scope. It is a discretionary writ which is addressed to the trial court. The purpose of the writ is to give the trial court an opportunity to correct its own record of an error of fact not appearing on the record and which error would not have been committed by the court if the matter had been brought to the attention of the trial court.

In order to constitute grounds for the issuance of a writ of coram nobis there must be shown the existence of an error of fact which was unknown at the time of trial and which is of such a nature that knowledge of its existence at the time of trial would have prevented the entry of judgment. The writ does not lie to correct errors of law and of fact appearing on the record since such errors are traditionally corrected by appeals and writs of error. Where the writ of habeas corpus affords a proper and complete remedy the writ of coram nobis will not be granted.^[109]

The petitioner must establish that no other remedy is available. In other words, the petitioner must no longer be in custody. The petitioner must also establish the factual error that the petitioner wishes to correct must be crucial to the ultimate judgment and the factual finding to which the alleged factual error is directed must not have been previously visited or passed on by the trial court.^[110]

Notable Coram Nobis Cases

Gordon Hirabayashi, Fred Korematsu, and Minoru Yasui

Gordon Hirabayashi, Fred Korematsu, and Minoru Yasui are best known for their principled resistance to the internment of Japanese Americans during World War II. All three had their convictions overturned through writs of coram nobis, and they were each awarded the Presidential Medal of Freedom.

After the bombing of Pearl Harbor in December 1941, President Franklin Roosevelt’s administration concluded that Japanese Americans were a security threat and thus authorized the military to secure areas from which “any or all persons may be excluded.” As a result, Japanese Americans were subject to curfew and other restrictions before being removed to internment camps. Hirabayashi, Korematsu, and Yasui, who were not acquainted with each other at the time, each defied the internment and were convicted for their resistance. Their convictions would be affirmed by the US Supreme Court between 1943 and 1944. Over forty years after the Court’s rulings, lawyers, including civil rights attorney, Peter Irons, re-opened their wartime convictions on the basis of newly discovered evidence of governmental misconduct. The new evidence indicated the government intentionally withheld The Ringle Report, a report drafted by the Office of Naval Intelligence, which would have undermined the administration's position of the military actions, as it concluded that most Japanese Americans were not a national security threat.

Gordon Hirabayashi was born in April 1918 in Seattle, Washington. He was a senior at the University of Washington when Japanese Americans were ordered to report to internment camps. Although he first considered accepting internment, he ultimately defied it. In May 1942, Hirabayashi turned himself in to the FBI. After being convicted in October 1942 for the curfew violation, he was sentenced to 90 days in prison. He also served a one-year sentence at McNeil Island Penitentiary for Selective Service violations when he refused to answer questions which singled out Japanese Americans on the basis of race alone.^[111] He appealed to the Supreme Court where, in 1943, his conviction was upheld in Hirabayashi v. United States.^[112] In 1987, the United States Court of Appeals for the Ninth Circuit granted a writ of coram nobis which effectively overturned his criminal conviction.^[113] Hirabayashi died in January 2012, and he posthumously received the Presidential Medal of Freedom in May 2012.^[114]

Fred Korematsu was born in 1919 in Oakland, California. He attempted to enlist with the United States Navy when called for military duty under the Selective Training and Service Act of 1940, but he was rejected due to stomach ulcers. In March 1942, when Japanese Americans were ordered to report to assembly centers, he refused and went into hiding in the Oakland area. He was arrested in May 1942, and held at the Presidio of San Francisco military detention center until his conviction in September 1942.^[115] The US Supreme Court in December 1944 upheld his conviction in Korematsu v. United States.^[116] In November 1983, the U.S. District Court in San Francisco formally granted the writ of coram nobis and vacated his conviction.^[117] He was awarded the Presidential Medal of Freedom in 1998, and died in March 2005.^[118]

Minoru Yasui was born in 1916 in Hood River, Oregon. He attended law school at the University of Oregon and became the first Japanese American lawyer in Oregon in 1939. Upon the declaration of war, Yasui attempted to report for military duty, but his services were refused nine times. After hearing the news of internment, Yasui planned his legal challenge to the government’s policies. In March 1942, he deliberately disobeyed the military implemented curfew in Portland, Oregon by walking around the downtown area and then presenting himself at a police station after 11:00 pm in order to test the curfew’s constitutionality.^[119] He was convicted in November 1942. Yasui appealed to the Supreme Court where, in 1943, his conviction was upheld in Yasui v. United States.^[120] In January 1984, his conviction was overturned when the US District Court in Oregon granted his writ of coram nobis.^[121] Yasui died in 1986, and he posthumously received the Presidential Medal of Freedom in November 2015.^[122]

George Stinney

In December 2014, a writ of coram nobis was granted by a federal court to posthumously vacate the conviction of George Stinney, a 14-year-old African-American boy who was convicted of murder and executed in June 1944.^[123] Stinney was convicted in 1944 in a one-day trial of the first-degree murder of two white girls: 11-year-old Betty June Binnicker and 8-year-old Mary Emma Thames. After being arrested, Stinney was said to have confessed to the crime; however, there was no written record of his confession apart from notes provided by an investigating deputy, and no transcript of the brief trial. On June 16, 1944, Stinney was executed as a result of the conviction.

On December 17, 2014, Stinney's conviction was posthumously vacated 70 years after his execution, because the federal court judge ruled that he had not been given a fair trial; he had no effective defense and his Sixth Amendment rights had been violated.^[124]

United Kingdom

The common law Writ of Error contra nobis and its equitable equivalent, the supplemental Bill of Review,^[125] do not appear to have survived the reforms to English law made in the last quarter of the 19th Century.

Writs of error as a separate proceeding were abolished by section 148 of the Common Law Procedure Act 1852 (15 & 16 Vict., c.76), which instead provided that "the Proceeding to Error Shall be a Step in the Cause." Error was finally abolished 23 years later in 1875, when Schedule I, Order 58, rule 1 of the Supreme Court of Judicature Act 1873 was brought into force and the Court of Appeal was created.

Fresh evidence

The modern practice at English law where a litigant seeks to rely upon evidence not known at trial is to bring an appeal.

In civil proceedings, CPR 52.11(1)(b) contains a presumption that civil appeals shall be limited to a review of a decision of the lower court, and CPR 52.11(2)(b) contains a presumption that the Court of Appeal shall not receive fresh evidence. The Court of Appeal will exercise its discretion to hear fresh evidence according to the over-riding objective in civil cases to deal with cases justly: however, three key criteria laid down by the Court of Appeal in Ladd v Marshall^[126] continue to be of relevance:

• the evidence could not have been obtained with reasonable diligence for use at the trial;
• the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;
• the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.^[127]

Moreover, where it is "necessary to do so in order to avoid real injustice," in "exceptional" circumstances, and where "there is no alternative effective remedy," CPR 52.17(1) permits both the High Court and the Court of Appeal to re-open a final determination of an appeal.

In criminal proceedings, the Court of Appeal also has a discretion to admit fresh evidence on appeal. If it does so, the Court must ask itself whether, in light of the fresh evidence, the conviction is unsafe.^[128]

The special case of fraud

Soon after the passage of the Judicature Acts, it was thought that, when a judgment had been obtained by wilful fraud of the victorious party, the aggrieved party's proper recourse was to bring a new action for fraud, because to try the alleged fraud required original jurisdiction, which the Court of Appeal did not have.^[129]

In so ruling, Jessell MR made specific references to the supplemental bill of review, the equitable equivalent of the writ of error contra nobis. However, the Court drew an analogy with the old law, rather than preserving it: in agreeing with Jessell MR, James LJ observed, "...if it is true that there was a fraud practised upon the Court, by which the Court was induced to make a wrong decree, the way to obtain relief will be to bring a fresh action to set aside the decree on the ground of fraud," (emphasis supplied).

Since the coming into force of the Civil Procedure Rules, the law has evolved further. In Noble v Owens,^[130] the Court of Appeal held that the modern position is that it is now not necessary to commence a fresh action to cure a judgment fraudulently obtained. Instead, the powers of the Court of Appeal under CPR 52.10 are sufficiently broad to permit the Court of Appeal to refer the determination of the issue of fraud to a Judge of the High Court as part of the appeal proceedings, with a consequent saving of costs.^[131]

In criminal cases, the Court of Appeal has allowed appeals and quashed convictions on the basis of misconduct by Crown witnesses analogous to fraud, e.g.: where prosecution witnesses had subsequently been convicted for giving perjured evidence during the original trial;^[132] or, where police officers who took confessions from the appellants had subsequently been discredited in later proceedings.^[133]

Recent attempts to resurrect the procedure

In Cinpres Gas Injection Ltd v Melea Ltd,^[134] an unsuccessful attempt was made to resurrect the supplemental bill of review. Jacob LJ, giving the judgement of the Court of Appeal, held that an attempt to invoke the old bill of review could not succeed because, for generations, applications for rehearing on the basis of fresh evidence had been made to the Court of Appeal and, if the Bill of Review procedure had survived the Judicature Acts, it had long since lapsed. His Lordship observed that "it would make for better justice in principle for a prior decision to be impugnable on the grounds for which a bill of review once lay, namely that there was fresh evidence not discoverable by reasonable diligence, which 'entirely changes the aspect of the case,'" (para. [100]). However, he also observed that the Court of Appeal had not been asked to consider its powers under CPR 52.17 to re-open a final appeal in "exceptional circumstances" and therefore could not say whether such an application would have succeeded.

Moreover, in an Northern Irish case, Walsh's Application,^[135] an application for a writ of error coram nobis following an unsuccessful judicial review, Weatherup J followed the Court of Appeal in Cinpres by observing, "While the Writ developed at Common Law, I doubt if the procedure survived the appeals process introduced by the Judicature (Ireland) Act 1875," before referring to the provision of that Act dealing with the abolition of proceedings in Error. The learned judge concluded that he did not have the jurisdiction to alter the decision made on judicial review.

It can therefore be seen that the Judicature Acts and the Civil Procedure Rules provide for a comprehensive system of appeals which effectively oust the function served by the former Bill of Review and Writ of Error coram nobis, which may safely be regarded as extinct in England, Wales and Northern Ireland.

See also

• Audita querela

References