The circuit split on Coram Nobis: Is it available to someone who was wrongfully convicted, served the sentence, and is not under any civil disabilities arising from the conviction?

The title of this post is among the Questions Presented in a Petition for Certiorari I filed in the U.S. Supreme Court in 2010 in Atkin v. United States, No. 09-1441.  Excerpts of the Petition are below:





1.     Is coram nobis relief available to a petitioner who was wrongfully convicted, served the sentence, and is not under any civil disabilities arising from the conviction?

2.     If so, is coram nobis relief available to a petitioner who was wrongfully convicted on some charges but whose convictions on other chargesremain valid?

* * *


The court below recognized that a majority of circuits—the “First, Second, Third, Fifth, Seventh and Eighth”—require a coram nobis petitioner “to prove that his allegedly invalid conviction produced ongoing collateral consequences,” but that “both the Fourth and Ninth Circuits have held that the petitioner need not show that he is suffering from an ongoing civil disability.” Pet. App. 5a (internal quotation marks omitted). Courts and commentators have criticized the majority’s civil-disabilities test and stated that the time has come for this Court to resolve the issue: “As the number of petitions for coram nobis begins to rise, the flaws of the civil disabilities test will be cast in stark relief, and the circuit split over the issue ought to attract the attention of the Supreme Court.” David Wolitz, The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One’s Name, 2009 B.Y.U.L. Rev. 1277, 1281 (2009).

Atkin’s case enables this Court to resolve the question and provide uniformity for all criminal defendants seeking relief from a wrongful conviction after their release. This case is a particularly appropriate vehicle because it allows the Court to resolve a related, unresolved question: Is coram nobis relief available to overturn a conviction if a petitioner’s other convictions will remain intact? Moreover, as this Court will shortly decide whether every conviction obtained under the “honest services” statute (18 U.S.C. § 1346) is invalid, clarity regarding these fundamental coram nobis principles will become even more pressing. Certiorari should be granted.

I. The Circuits Are Divided on the Availability of Coram Nobis Relief Where No Civil Disability Exists.

 The circuit split arises from competing principles of finality and accuracy underlying coram nobis. This split is best understood with a brief preface discussing an overview of the writ itself.

A.   Overview of coram nobis and the competing principles leading to the circuit split.

The writ of coram nobis has its roots in the common law of 16th-century England. Wolitz, supra, at 1283. In its traditional form, coram nobis provided a narrow opportunity for a court to reconsider a final judgment, primarily where new facts had come to light. Id. The phrase itself means “before us,” which is a reference to the sovereign reviewing its own judgment. Black’s Law Dictionary 338 (7th ed. 1999).

The writ came to the United States with the common law, and it maintained its traditional role as a means for trial courts to correct factual errors in decided cases. Wolitz, supra, at 1283. As courts crafted other mechanisms for correcting factual and clerical mistakes into the 1930s and 1940s, however, coram nobis became more and more rare. Id. at 1284. Indeed, the writ was abolished in civil cases by Federal Rule of Civil Procedure 60(b). What life remained in coram nobis was then squarely presented to this Court in United States v. Morgan, 346 U.S. 502 (1954).

In Morgan this Court held that coram nobis was alive and well. Wolitz, supra, at 1284. The defendant there had pleaded guilty, without counsel, to various federal offenses when he was 19 years old. Morgan, 346 U.S. at 511. Years after his release, he sought coram nobis relief to vacate the conviction based on the denial of his right to counsel. Id. at 504. The Second Circuit concluded coram nobis was available, and this Court affirmed.

Though this Court recognized that the writ was not explicitly authorized by federal statute and had been abolished in civil proceedings, the Court found sufficient statutory authority for coram nobis in the All Writs Act of 1789, which 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.” Id. at 506 n.6 (quoting 28 U.S.C. § 1651(a)). The Court further delineated when coram nobis relief was available, holding that it “should be allowed . . . only under circumstances compelling such action to achieve justice”—namely, (a) to cure errors “of the most fundamental character,” when (b) “no other remedy [is] then available,” and (c) when “sound reasons [exist] for failure to seek appropriate earlier relief.” Id. at 511–12. The Court noted that the “wrong” of an unlawful conviction includes the abstract injustice in the system and may also include “results of the conviction,” noting, for example, that “civil rights may be affected.” Id. at 512–13. The Court concluded as follows: “As the power to remedy an invalid sentence exists, we think [Morgan] is entitled to an opportunity to attempt to show that his conviction was invalid.”    Id.

 The dissenting opinion concluded that coram nobis relief should not be available to a petitioner who is no longer in custody. Morgan, 346 U.S. at 520 (Minton, J., dissenting). The dissent recognized that “the record of a conviction for a serious crime is often a lifelong handicap,” but concluded that relief should not be available if a person is merely suffering “a stain on his reputation.”  Id. at 519.

Ultimately, this Court described a petition for coram nobis relief as “of the same general character as one under 28 U.S.C. § 2255.” Id. at 506 n.4. Thus, coram nobis “became, in essence, habeas for those not in federal custody” and “a vital part of the post-conviction legal landscape.” Wolitz, supra, at 1287, 1289. This Court reaffirmed the viability of the writ last term. See United States v. Denedo, 129 S. Ct. 2213, 2221 (2009) (stating that a federal court’s “authority to grant a writ of coram nobis is conferred by the All Writs Act”).

The greatest point of contention between the majority and the dissent in Morgan—the proper weight assigned to the competing principles of accuracy and finality—“still sets the terms of the debate surrounding coram nobis today.” Wolitz, supra, at 1287. That debate is illustrated in the circuit split presented here: Is coram nobis relief available where the petitioner is not under a civil disability traceable to the wrongful conviction? And, if so, is the writ still available if a petitioner has other, valid convictions? The majority of courts says that relief is not available in either of those circumstances; a minority says it is available in both.

B.    Majority view: Coram nobis is available only if the petitioner is under a civil disability.

The requirement that a coram nobis petitioner be under an ongoing civil disability first appeared to explicitly arise in the Seventh Circuit in the late 1980s. Coram nobis petitions came to the courts at that time in increasing numbers after this Court’s decision in McNally v. United States, 483 U.S. 350 (1987). In McNally, this Court invalidated mail-fraud convictions under 28 U.S.C. § 1341 based on a violation of the “intangible right” of the citizenry to have public officials perform their duties honestly. Persons convicted under this invalidated theory who had served their time sought relief via coram nobis petitions. In United States v. Keane, 852 F.2d 199 (7th Cir. 1988), the Seventh Circuit acknowledged that such petitioners had a “black mark” on their record but concluded that they must have an ongoing civil disability to avail themselves of the writ. Id. at 204. The interest in finality otherwise trumped the reputational harm.   Id.

 The Seventh Circuit’s strict view—employing some form of the civil-disabilities test—soon became the dominant approach among the federal circuits. Wolitz, supra, at 1299; see also Blanton v. United States, 94 F.3d 227, 233 (6th Cir. 1996) (“The First, Second, Third, Fifth, and Eighth Circuits have followed the Seventh Circuit’s lead . . . .”).[1]


[1] See Hager v. United States, 993 F.2d 4, 5 (1st Cir. 1993); Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992); United Statesv. Osser, 864 F.2d 1056, 1059–60 (3d Cir. 1988); United States  v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992); Steward v. United States, 446 F.2d 42, 43–44 (8th Cir. 1971). The Fifth Circuit is known to employ a lenient form of the civil-disabilities test; thus, some group it with the minority view typically ascribed to the Fourth and Ninth Circuits. See, e.g., United States v. Loftus, 796 F. Supp. 815, 823 (M.D. Pa. 1992) (“In contrast to the Fourth, Fifth and Ninth Circuits, the Seventh Circuit has taken a restrictive stance on the question of collateral consequences.”).



C.   Minority view: Coram nobis is available even if the petitioner is under no civil disability.

Right around the same time as the Seventh Circuit developed the strict civil-disabilities test in the late 1980s, the Ninth Circuit eschewed it, concluding that reputational harm alone suffices for coram nobis relief. This holding arose in case centering on the internment of Japanese-Americans during World War II. In 1943 this Court upheld Gordon Kiyoshi Hirabayashi’s conviction for violating the wartime curfew and interment orders.   Hirabayashi v. United States, 320 U.S. 81 (1943). Four decades later Hirabayashi sought coram nobis relief on the basis of newly discovered evidence: A suppressed World War II report showed that the real rationale behind the orders was racial prejudice and not military exigency. Hirabayashi v. United States, 828 F.2d 591, 598 (9th Cir. 1987). He argued the convictions were accordingly invalid, and the Ninth Circuit held that coram nobis was available—even without a showing of ongoing civil disabilities. Id. at 606 (“We have repeatedly reaffirmed the presumption that collateral consequences flow from any criminal conviction.”).

The Fourth Circuit takes a similar approach. See United States v. Mandel, 862 F.2d 1067 (4th Cir. 1988) (granting coram nobis relief and noting that, without it, petitioners “would face the remainder of their lives branded as criminals . . . .”). The Fourth Circuit also noted that “[c]onviction of a felony imposes a status upon a person which not only makes him vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities.” Id. at 1075 n.12 (quoting Parker v. Ellis, 362 U.S. 574, 593–94 (1960) (Warren, C.J., dissenting)). See also Loftus, 796 F. Supp. at 823 (“The [Fourth Circuit’s] observation [in Mandel] that petitioners would be ‘branded as criminals’ without coram nobis relief aligns the Fourth Circuit with the Ninth Circuit. In essence, the Mandel Court, like the Hirabayashi Court, presumes that consequences collateral to an invalid conviction exist.”).

Finally, as noted, the Fifth Circuit is at times considered to be aligned with the Ninth and Fourth. See id. at 822 (“It appears . . . that the Court of Appeals for the Fifth Circuit requires collateral consequences but, like the Ninth Circuit Court of Appeals, takes a lenient approach.”); cf. United States v. Marcello, 876 F.2d 1147 (5th Cir. 1989) (noting collateral-consequences requirement and granting writ but not identifying particular consequences suffered).

Because the minority approach recognizes that reputational harm from a conviction is damaging enough for federal relief, coram nobis is available under this approach even if the petitioner has other convictions that would remain intact. See United States v. Walgren, 885 F.2d 1417, 1421–22 (9th Cir. 1989) (assuming that conviction on one count is valid and granting coram nobis relief on two other counts). Indeed, in Hirabayashi the district court did not vacate all of the petitioner’s convictions. Hirabayashi v. United States, 627 F. Supp. 1445, 1457 (W.D. Wash. 1986) (district court did not vacate all of petitioner’s convictions even though it concluded that coram nobis was appropriate).

By contrast, the Sixth Circuit here concluded that coram nobis relief was simply unavailable because the collateral consequences of Atkin’s other convictions would remain intact—even if his tax-related convictions were invalid. Pet. App. 6a. Thus, inherent in the broad circuit split regarding the civil-disabilities test lays a related unresolved question on this particular point about the effect of additional convictions. As discussed below, the minority view takes the proper approach.


II. The Minority View Is Proper.

The civil-disabilities test is inconsistent with this Court’s decision in Morgan. That decision simply held that federal courts have the power under the All Writs Act to provide relief in the form of coram nobis to vacate criminal convictions that are, upon proper showing, invalid. Wolitz, supra, at 1304. The Court mentioned examples of a conviction’s collateral consequences not to create a “new barrier” to coram nobis relief but to “underscore the importance” of providing relief to convicted persons who are no longer in custody. Id.

Moreover, this Court’s precedent can be read to favor the minority approach. See Sibron v. New York, 392 U.S. 40, 55 (1968) (stating that this Court has “acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences”) (addressing mootness in criminal appeals) (citing Pollard v. United States, 352 U.S. 354 (1957)); see also Loftus, 796 F. Supp. at 826 (“[C]ontrary to the position of the Seventh Circuit . . ., Sibron could support the Ninth Circuit’s presumption that ‘collateral consequences flow from any criminal conviction.’”).

The minority view also adheres to long-standing principles that reputational harm—particularly the stigma of a wrongful criminal conviction—is cognizable in federal court. The civil-disabilities test arises in part from the idea that reputational harm alone is insufficient to trigger a “case or controversy” under Article III of the Constitution. See, e.g., Keane, 852 F.2d at 204 (“A strong emotional interest is not enough to produce an Article III case or controversy.”). Yet “conventional standing doctrine and common-law defamation are two well-established areas of law that already recognize reputational harm as real, weighty, and deserving of legal redress.” Wolitz, supra, at 1310; see also, e.g., Meese v. Keene, 481 U.S. 465, 472–77 (1987) (discussing reputational harm in context of standing).

Indeed, lower courts have expressed disagreement when their controlling court of appeals adopts the stricter majority approach. See, e.g., Loftus, 796 F. Supp. at 826–27 (“While this Court would prefer the liberalized attitude of the Fourth, Fifth and Ninth Circuits, it will be assumed that [the Third Circuit] Court of Appeals would opt for the more exacting standard adopted by the Seventh Circuit.”).


III. This Case is a Vehicle to Clarify Both the Main Circuit Split and the Unresolved Question Regarding the Effect of a Petitioner’s Additional Convictions.

 Under the minority approach, Atkin’s case would have come out differently; coram nobis would be available to him.

As the court below recognized, Atkin argued that the “recently issued certificates of release of federal tax liens by the IRS in his favor, which cancelled ‘almost half a million dollars of liens filed for those tax years,’ represented newly discovered exculpatory evidence that was never disclosed to him during his criminal trial or appeal.” Pet. App. 3a. Yet the court denied relief because it concluded that his convictions on other charges would be unaffected.

The question is whether that result should change—particularly under the minority approach—even if one assumes that his other convictions would remain intact.[2] If this Court endorses the minority’s position on the circuit split (i.e., coram nobis is available to remedy reputational harm from an invalid conviction without a showing of specific civil disabilities), it should further clarify that this position holds true regardless of any convictions on additional charges.  Contrary to the lower  court’s view here that reaching the circuit split was unnecessary, the minority approach would indeed have entitled Atkin, like Hirabayashi, to pursue the writ of coram nobis, regardless of other convictions. See Wolitz, supra, at 1339 (“Unfortunately, the overwhelming majority of other circuits have adopted a coram nobis jurisprudence that would have denied relief to Hirabayashi and, in fact, denies relief to deserving petitioners today.”).


[2] For purposes of proceedings in this Court, Atkin concedes that his non-tax-related convictions are valid. He does not, however, waive any future argument in the lower courts that the Government’s failure to disclose the exculpatory tax-related evidence undermined the jury’s entire verdict, thus invalidating all counts on which he was convicted.



IV. This is An Important Federal Question That Will Affect Any Defendant Seeking to Invalidate a Conviction After Release.

 As noted, courts and commentators have discussed the circuit split and the need for this Court to resolve it. See, e.g., Loftus, 796 F. Supp. at 822 (“[T]here is a dispute among the circuits with respect to what constitutes collateral consequences sufficient to warrant coram nobis relief . . . .”); id. at 819 (“With respect to the collateral consequences component of the coram nobis test, the Courts of Appeals have adopted divergent standards . . . .”). But the deep division in the circuits is not the sole reason that this case warrants this Court’s review.

The questions presented affect every person whose federal conviction is deemed invalid after serving a sentence. While those conditions will arise in different ways in particular cases, they also arise in broad numbers whenever a federal criminal statute is narrowed or deemed unconstitutional. See, e.g., id. at 815 (granting coram nobis relief to petitioner who was convicted under § 1341 before it was limited by this Court in McNally); see also Wolitz, supra, at 1339 (“The civil disabilities test acts as a roadblock to the proper functioning of [the writs of habeas corpus and coram nobis], keeping out a whole class of post- conviction review cases for reasons that do not stand up to scrutiny.”).

Indeed, as just one example, the Court is currently reviewing whether to issue such a broad ruling with regard to 18 U.S.C. § 1346, which prohibits depriving another of the intangible right of “honest services.” That statute is the subject of three pending cases. Skilling v. United States, No. 08-1394 (whether the statute is unconstitutionally vague); Black v. United States, No. 08-876 (whether the “honest services” clause of the statute applies in cases where the jury did not find that defendants “reasonably contemplated identifiable economic harm”); Weyhrauch v. United States, No. 08-1196 (whether conviction under the statute for non-disclosure of material information requires proof that defendant violated a disclosure duty imposed by state law). “There is a serious argument that § 1346 is nothing more than an invitation for the federal courts to develop a common- law crime of unethical conduct.” Sorich v. United States, 129 S. Ct. 1308, 1310 (2009) (Scalia, J., dissenting from the denial of certiorari). If the Court invalidates or narrows § 1346, as it did § 1341 in McNally, many coram nobis petitions will follow. See Wolitz, supra, at 1293 (noting that after McNally defendants convicted under § 1341 “brought coram nobis petitions to vacate their convictions”). And many of the petitioners, like Atkin, will have additional convictions that are unaffected by the ruling. The lower courts’ need for guidance with respect to coram nobis is apparent—and only this Court’s intervention can provide it.

With Atkin’s case, this Court can resolve the split regarding the prerequisites for coram nobis relief, and it can clarify whether the writ is available when a petitioner’s other convictions remain intact. There will then be uniformity in federal courts across the country as they are inevitably asked to decide whether people who have served their sentence may seek relief from a wrongful conviction.




The petition for a writ of certiorari should be granted.


Respectfully submitted,

David E. Mills

Counsel of Record


1300 West Ninth Street, Ste. 636

Cleveland, Ohio44113

(216) 929-4747


Counsel for Petitioner