The Other “Great Writ”: The Second Circuit Revives Coram Nobis

By Zachary Margulis-Ohnuma

Earlier this month, the Second Circuit Court of Appeals breathed new life into the “ancient” and “arcane” writ of error coram nobis. The ultimate remedy-of-last-resort, a writ of error of coram nobis is warranted only when the petitioner is not in custody, rendering the more-familiar writ of habeas corpus unavailable as a remedy. As expounded by the Second Circuit in Kovacs v. U.S. (2nd Cir. 2014), a writ of coram nobis should be granted where: 1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ.

Resting on the Sixth Amendment right to counsel, the Kovacs panel held that ineffective assistance of counsel is grounds for granting a writ of coram nobis. Petitioner Kovacs, originally from Australia, clearly communicated to his defense attorney that his main legal objective was to avoid immigration consequences at all costs. Despite his attorney’s explicit, affirmative representation to Kovacs, stated in front of the trial court, that a plea to misprision of felony was “not a deportable offense,” in 2009, ten years after his guilty plea, Kovacs was confronted by immigration officials about his eligibility to re-enter the U.S. due to his conviction. He has not been able to return to the United States since. The Second Circuit found ineffective assistance due to defense counsel’s erroneous advice to his client throughout the plea bargaining process.

Unlike a petition for habeas corpus, a petition for coram nobis is not governed by a specific statute of limitations. As long as there is a justifiable reason for any delay in the case, a writ may be sought at any point. And in Kovacs, in which the petitioner learned of coram nobis two years after he could have filed a petition, the Second Circuit stated that the inherent rarity of a petition for coram nobis, inter alia, was reason enough not to hold the petitioner accountable for his filing delay. The pieces all fit for Kovacs: a provable constitutional claim, compelling collateral consequences, and a reasonable excuse for the delay in filing. The conviction was reversed.