On this page
If you are still in federal custody, you generally cannot use coram nobis or audita querela — two old, rarely used court orders — to attack your conviction. You must use a § 2255 motion. If you try to use these writs anyway, the court may treat your filing as a § 2255 motion, and that can use up your one chance.
For a person in federal custody, § 2255 is usually the right way to challenge a conviction or sentence. In rare cases, the “savings clause” in § 2255(e) allows a traditional habeas petition under § 2241 instead.
What are coram nobis and audita querela?
They are old common-law writs. Courts can issue them under the All Writs Act, 28 U.S.C. § 1651, but only in very rare cases where no other remedy is available or adequate. United States v. Denedo, 556 U.S. 904, 911 (2009); United States v. Brown, 117 F.3d 471, 474-75 (11th Cir. 1997).
The line between the two is not clear. Generally, coram nobis attacks a conviction that was flawed when it was entered. Audita querela challenges a conviction that was valid when entered but became invalid later. United States v. Torres, 282 F.3d 1241, 1245 n. 6 (10th Cir. 2002).
One court said audita querela is “probably available where there is a legal, as contrasted with an equitable, objection to a conviction that has arisen subsequent to the conviction and that is not redressable pursuant to another post-conviction remedy.” United States v. Richter, 510 F.3d 103, 104 (2nd Cir. 2007).
Can you use coram nobis while you are in custody?
Generally, no. Section 2255 and § 2241 already give people in custody a way to challenge their detention. So courts have refused to let prisoners use coram nobis while in custody. In re Daniels, 203 Fed. Appx. 442 (4th Cir. 2006).
Coram nobis is mainly for people who are no longer in custody but still suffer serious effects of the conviction, such as deportation. See Kovacs v. United States, 744 F.3d 44, 48-49 (2nd Cir. 2014)(granting coram nobis relief to petitioner residing in Australia who was subject to detention and deportation upon entry to the United States); United States v. Kwan, 407 F.3d 1005, 1009, 1012 (9th Cir. 2005)(Resident alien who had completed prison sentence but was subject to deportation based on conviction could use coram nobis because neither habeas nor §2255 was available).
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
People in custody are often tempted to file these writs to avoid the one-year deadline or the limits on second or successive § 2255 motions. It does not work, and it carries a real risk.
What is “recharacterization,” and why is it risky?
Recharacterization means the court treats your filing as something else. If a court decides that a filing labeled “coram nobis” is really a § 2255 motion, it can treat it as one. See United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998)( “There is a trend among circuit courts to look beyond the formal title affixed to a motion if the motion is the functional equivalent of a motion under section 2255”).
Once that happens, all of the § 2255 rules apply. The one-year deadline may bar the motion. Worse, most people get only one full § 2255 motion. A later § 2255 motion would face the strict limits on second or successive motions.
Any post-conviction filing can be recharacterized, not just coram nobis. Courts have recharacterized Rule 33 motions for a new trial (United States v. Evans, 224 F.3d 670, 674-75 (7th Cir. 2000)) and § 2241 petitions (Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000)).
Before a court recharacterizes a filing by a person without a lawyer as a first § 2255 motion, it must warn the person. It must explain that later § 2255 motions will face the second-or-successive limits, and give the person a chance to withdraw the filing or add all of their § 2255 claims. Castro v. United States, 540 U.S. 375, 383 (2003). No warning is required when the recharacterized filing would already be a second § 2255 motion. Evans, 224 F.3d at 674-75.
Common questions
I have a valid claim, but I cannot bring it under § 2255 or § 2241. Is there anything else I can do?
In very rare cases, the All Writs Act allows coram nobis or audita querela when no other remedy is available or adequate. These writs are generally not available to someone still “in custody” on the conviction. They are most often used by people who have finished their sentence but still face serious consequences from the conviction.
I am barred from filing a § 2255 motion for procedural reasons. Can I file coram nobis or audita querela instead?
No. Prisoners try this often, and it does not work. A lawful procedural rule — like the one-year deadline — does not make § 2255 “inadequate” just because it blocks your motion. Talk with a lawyer before filing one of these writs.
The court says it plans to “recharacterize” my motion as a § 2255 motion, but it is not a § 2255 motion. What should I do?
Take the warning seriously. Courts look at what a filing does, not what it is called. If it works like a § 2255 motion, the court can treat it as one — but it must warn you first. Castro v. United States, 540 U.S. 375 (2003). The warning gives you a chance to decide whether to withdraw the filing or amend it.
Why does the warning matter so much?
Because you may get only one full § 2255 motion. The warning lets you weigh the consequences and consider withdrawing your filing.
Your original filing may not have had a deadline, but § 2255 does. And because a second or successive § 2255 motion is so hard to file, you need every claim in your first one.
If the court has warned you it may recharacterize your filing, book a consultation with Brandon Sample before the response deadline.
Related pages
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
The §2255(e) Savings Clause: Use §2241 When §2255 is Inadequate and Ineffective
Questions about your case? Book a consultation to talk it through with Brandon Sample.