Coram Nobis and Other Writs Beside § 2255

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(a), which lets federal courts issue “all writs necessary or appropriate in aid of their respective jurisdictions.” But they are available 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 (11th Cir. 1997).

Where does federal coram nobis come from?

The key case is United States v. Morgan, 346 U.S. 502 (1954). Morgan had finished a federal sentence. He later said he had not had a lawyer and had not waived one. The Supreme Court held that the federal trial court could hear his request in the nature of coram nobis, because no other remedy was then available and there were sound reasons he had not sought relief earlier. Id. at 512. The Court explained that even after a sentence is served, “the results of the conviction may persist.” Id. at 512-13.

In Denedo, the Court described coram nobis as an extraordinary remedy, limited to “extraordinary” cases where it is needed “to achieve justice,” and unavailable when other remedies, such as habeas corpus, are available. 556 U.S. at 911.

What do you have to show to get coram nobis?

The federal courts of appeals phrase the test a little differently, but the core elements are the same. The Ninth Circuit lists four requirements:

1. No other remedy. A more usual remedy, such as a § 2255 motion, is not available, usually because you are no longer in custody.
2. Sound reasons for the delay. Valid reasons exist for not attacking the conviction earlier. There is no fixed deadline, but unexplained delay can defeat the petition.
3. Continuing consequences. The conviction still causes adverse consequences serious enough to give the court a live case, such as deportation.
4. Fundamental error. The error is “of the most fundamental character,” such as a denial of the right to counsel or ineffective assistance of counsel.

United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) (quoting United States v. McKinney, 71 F.3d 779, 781-82 (9th Cir. 1995)). The Second Circuit uses a similar three-part test: circumstances compelling relief to achieve justice, sound reasons for not seeking relief earlier, and continuing legal consequences that the writ can fix. Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014) (quoting Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996)).

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 (2d Cir. 2007) (per curiam) (quoting United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995)). In practice, it is almost never granted to someone who could have used § 2255.

How do you file a coram nobis petition?

You file it in the federal court that entered the criminal judgment, not in a different district and not in the court of appeals. The Supreme Court has described coram nobis as “a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding.” Morgan, 346 U.S. at 505 n.4; see Denedo, 556 U.S. at 913. In practice, that means:

• file the petition in the criminal case, with the case number of the conviction you are challenging;
• explain why you are no longer in custody and why § 2255 is not available;
• give sound reasons for not raising the claim earlier;
• describe the continuing consequences of the conviction; and
• state the fundamental error and the facts that prove it, with supporting documents or declarations.

There is no national form. An appeal from an order granting or denying coram nobis is treated as an appeal in a civil case for deadline purposes, so the 60-day period in Fed. R. App. P. 4(a)(1)(B) applies when the United States is a party. Fed. R. App. P. 4(a)(1)(C).

What is coram vobis?

Coram vobis (“before you”) is the name of a common-law writ closely related to coram nobis (“before us”).

Today, coram vobis has no separate role in federal criminal practice. In civil cases, Fed. R. Civ. P. 60(e) abolished “writs of coram nobis, coram vobis, and audita querela,” and Rule 60(b) motions and independent actions took their place. In criminal cases, the Supreme Court in Morgan and Denedo recognized relief “in the nature of” coram nobis under the All Writs Act. Those decisions speak of coram nobis, not coram vobis. A federal prisoner or former prisoner who wants this kind of relief should file for coram nobis in the court that entered the judgment.

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 F. App’x 442 (4th Cir. 2006) (per curiam) (unpublished).

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 (2d Cir. 2014) (ordering coram nobis relief for an Australian national and U.S. permanent resident, living in Australia, who faced detention and deportation if he reentered the United States); United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) (permanent resident who had finished his sentence but faced deportation because of the conviction could use coram nobis).

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 § 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. A Rule 33 motion for a new trial that raises § 2255-type claims is treated as a § 2255 motion (United States v. Evans, 224 F.3d 670, 674-75 (7th Cir. 2000)), and a § 2241 petition that attacks errors at trial or sentencing is properly treated under § 2255 (Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000) (per curiam)).

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

Related pages

What Is Habeas Corpus? A Guide for Federal Prisoners

The History of Habeas Corpus

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

The §2255(e) Savings Clause: Use §2241 When §2255 is Inadequate and Ineffective

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