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Writ of Coram Nobis – What is it and how do I Bring One?
A writ of coram nobis is a court order in a criminal proceeding that allows a trial court to reconsider a verdict upon the discovery of new facts that were not available during trial. You typically bring one by filing a petition for writ of coram nobis with the court that convicted you and sentenced you for a crime. The writ is not available in all jurisdictions and your state’s criminal procedure laws will set forth the specific rules for filing a petition.
Note that these petitions are not the same as habeas corpus petitions.
A writ of habeas corpus is a court order requiring a hearing to establish whether there is a constitutional basis for a court’s decision to confine you following an arrest or conviction. If you prevail at the hearing, you will go free from jail or prison.
1. What is a coram nobis petition?
A petition for writ of coram nobis is a document that you file with a criminal court after receiving a criminal conviction. The petition asks the trial court to:
reconsider or vacate a verdict when there are new facts relevant to the verdict, and
do so when these facts were not available at the time of trial, even with the defendant’s (and his/her lawyer’s) reasonable efforts.1
A petition for writ of coram nobis is sometimes referred to as a “petition for writ of error coram nobis.” “Coram nobis” is a Latin term meaning the “error before us.”
Coram nobis relief is granted to correct errors of fact/factual errors in a case and may include a new trial and the setting aside of a guilty verdict.
Note, though, that the granting of the petition for the writ of error coram nobis is considered an extraordinary remedy and is typically limited in cases where there are fundamental errors.
Some examples of when a court may grant this form of post-conviction relief include when the defendant:
was under the influence of drugs during the court process,
suffered from brain damage2, and
was not advised of deportation or immigration consequences of a guilty plea.3
Note again that these petitions are for when there is an error of fact or new evidence. They are not used for challenging errors of law that may have occurred at trial.
2. How do you bring a petition for writ of coram nobis?
These petitions are only available in some states and in federal court.4
Further, state laws often differ when it comes to the requirements for filing a petition and when a court may grant one.
With that said, however, some generalizations can be made. For example, consider California law. The law says a defendant can file a petition when:
there is some new fact in a case (post-conviction) that was not present to the court at or before trial,
the new fact would have prevented the court’s conviction or judgment,
the defendant’s fault or negligence was not the reason for not knowing of the fact before or during trial,
the newly discovered fact does not go to the merits of the legal issues tried, and
the fact is one that could not, in the exercise of due diligence, have been discovered earlier.5
If the above are true, the law says a defendant should file a petition with the trial court that convicted the defendant or issued a final judgment (as opposed to an appellate court or a court of appeals).6
Most states also say that you can only file a petition when out of custody. That is, you cannot file a petition for writ of coram nobis if you are held in state prison or county jail.
3. What is the difference between a writ of coram nobis and a writ of habeas corpus?
The main difference is that you can only file a habeas corpus petition when in custody. But you can usually only file a petition for writ of coram nobis when out of custody.
A writ of habeas corpus is a court order requiring a hearing to establish whether there is a constitutional basis to keep you in custody after an arrest or conviction.
If granted, the court will hold a hearing to determine whether your confinement or sentence is legal. If you prevail at the hearing, you will go free.
You may typically file for habeas corpus if you believe:
your detention by the justice system was unlawful,
your conviction violated your constitutional rights, or
See, for example, Nevada Revised Statutes (NRS) 34.360 and 34.724.
About the Author
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.