Coram Nobis and Audita Querela: Extraordinary Remedies and Recharacterization
For a federal prisoner pursuing postconviction collateral relief opportunities, section 2255 is usually the proper vehicle to mount the challenge. Congress intended section 2255 to provide a federal prisoner what she needs to pursue habeas corpus relief. Section 2255 even includes a "savings clause", which permits one to resort to traditional habeas corpus (§2241) when the remedy provided by section 2255 would be inadequate or ineffective. This article discusses the extraordinary remedies of coram nobis and audita querela, which are available through the vehicle of the All Writs Act.
Coram Nobis and Audita Querella: Two Extraordinary Remedies Available through the All Writs Act
But there are some rare -- very rare -- circumstances where no statutory remedy is available or adequate. When a person finds himself in such a situation, he can resort to the common law writs of coram nobis and audita querela. These extraordinary remedies, available pursuant to the All Writs Act, 28 U.S.C. 1651, allow for relief when nothing else is available. United States v. Deredo, 556 U.S. 904, 911 (2009); United States v. Brown, 117 F.3d 471, 474-75 (11th Cir. 1997).
The difference between the two writs is not well established, but it appears that coram nobis is used to attack a conviction that was infirm at the time of judgment, while audita querela is available to challenge a conviction that was valid at the time of judgment, but later became invalid. United States v. Torres, 282 F.3d 1241, 1245 n. 6 (10th Cir. 2002). One court explained that 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).
No Coram Nobis or Audita Querela While in Custody
Because section 2255 and section 2241 combine to ensure that a remedy is available to individuals who are in custody, courts have prohibited incarcerated prisoners from using coram nobis while in custody. In re Daniels, 203 Fed. Appx. 442 (4th Cir. 2006). It appears that the only time the statutory remedies of habeas corpus are "unavailable" to persons involved in the federal criminal system is when they are either not yet in custody, or have been released from custody. 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).
The long and short of this discussion is that federal prisoners who are in custody cannot use coram nobis or audita querela in order to mount a collateral attack on a conviction or sentence. While the All Writs Act does make such filings tempting, don't do it. Prisoners are often tempted to try this route because the common law writs don't come with the many impediments to relief that section 2255 does. For instance, a prisoner may file a coram nobis petition in order to avoid the AEDPA-imposed statute of limitations on section 2255 proceedings or to get around the prohibition on second or successive section 2255 motions.
Risk of Courts Recharacterizing a Functional Coram Nobis or Audita Querela Petition as a 2255 Motion
This strategy does not work, and comes with a risk. Regardless of whether a petition is labeled "coram nobis," if a court determines that it is, in fact, a section 2255 motion, it will "recharacterize" the motion as such. 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").
When a court recharacterizes an incorrectly labeled motion as a section 2255 motion, all of the trappings of §2255 come into play. The statute of limitations may bar the motion outright. Much more important, however, is the fact that federal prisoners only get one chance at a section 2255 motion. Any section 2255 motion filed after a recharacterized motion will run into the bar on second or successive motions. A federal prisoner who finds himself with a recharacterized section 2255 motion on his hands must tread carefully.
It should be noted here that any postconviction filing can be recharacterized as a section 2255 motion; recharacterization is not limited to improper coram nobis motions. Rule 33 motions have been recharacterized as section 2255 motions (United States v. Evans, 224 F.3d 670, 674-75 (7th Cir. 2000)), as have section 2241 habeas corpus petitions (Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000)). The All Writs Act does not protect against such recharacterization.
Because recharacterization can have a negative impact on a movant, the Supreme Court requires courts to notify pro-se litigants of an impending recharacterization and of its consequences. Castro v. United States, 540 U.S. 375 (2003). Specifically, a court must warn such litigants that recharacterization will render all future section 2255 motions subject to the restrictions on second or successive section 2255 motions. Note that no such warning is required when the recharacterized motion is already the second section 2255 motion. Evans, 224 F.3d at 674-75.
Attorneys Experienced in the All Writs Act's Coram Nobis and Audita Querela Remedies
The situations in which coram nobis or audita querela are appropriate are few and far between, but the experienced attorneys at the Law Office of Brandon Sample know what they are and are well-versed in the All Writs Act. Our attorneys and professional staff also know the dangers of recharacterization -- and how to avoid it. If you or a loved one believe that you have a situation calling for an extraordinary writ, or have found yourself with a recharacterized motion, contact us now. We will consult with you and get to work on your issues immediately.
Coram Nobis and Audita Querela: Extraordinary Remedies and Recharacterization FAQs
Q: After examining every statute, rule and law related to section 2255, I have concluded that although I have a valid claim, I cannot bring it in section 2255 or 28 USC 2241 proceedings. Is there anything else I can do?
A: In the very rare circumstance in which there is no statutory remedy available or adequate to address the legitimate claims of a person "in custody" of the federal government, the All Writs Act provides for the common law writs of coram nobis and audita querela, which may be available. Neither coram nobis nor audita querela writs are available to individuals who are currently incarcerated. The writs are most often used when an individual has completed his or her prison sentence but is still in custody of the federal government.
Q: I am barred from filing a section 2255 motion for procedural reasons. Can I argue that the procedural impediment to my motion renders section 2255 unavailable or inadequate, and file a writ of coram nobis or audita querela in accordance with the All Writs Act?
A: No. This route is attempted by prisoners on a regular basis, and it does not work. A procedural impediment that is lawful and constitutional does not make section 2255 inadequate or unavailable simply because the proper operation of the procedure prohibits you from filing a section 2255 motion. The use of provisions of the All Writs Act, such as coram nobis or audita querela, are extremely nuanced. Speak with an attorney before attempting such legal maneuvers.
Q: The court sent me a letter saying that it intends to "recharacterize" my coram nobis, audita querela, or other motion as a section 2255 motion, but it's not a section 2255 motion! What should I do?
A: When a court concludes that a motion filed by a federal prisoner is the functional equivalent of a section 2255 motion, regardless of it is pursuant to the All Writs Act or not, it will treat the motion as such, regardless of what the motion is called. If the court intends to recharacterize a motion in this way, it must warn the movant first. Castro v. United States, 540 U.S. 375 (2003). This warning is provided so that the movant will understand the consequences of recharacterization.
Q: Why is it important to know when a court intends to recharacterize a motion, such as the All Writs Act's coram nobis or audita querela, as a section 2255 motion?
A: A movant needs to know that a court intends to recharacterize a motion as a §2255 motion so that the movant can weigh the consequences of recharacterization and consider voluntary dismissal of the motion. The consequences are serious; while the movant's original motion may not have had a statute of limitations, section 2255 does. Moreover, the difficulty of filing a second or successive section 2255 motion makes it urgent that the movant make all available claims in the first section 2255 motion. If your coram nobis, audita querela, or another motion based on the All Writs Act is threatened with recharacterization, contact us now. It is crucial that your initial section 2255 motion is proper and includes all possible claims. Our team of experienced habeas corpus attorneys will ensure that your section 2255 motion is correct, the first time.