Trujillo v. State

129 Nev., Advance Opinion 75
IN THE SUPREME COURT OF THE STATE OF NEVADA
WALTER TRUJILLO, No. 58937
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
OCT 1 0 2013
Appeal from an order of the district court denying a petition
for a writ of coram nobis. Eighth Judicial District Court, Clark County;
Linda Marie Bell, Judge.
Affirmed.
Michael H. Schwarz, Las Vegas,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
Attorney, Clark County,
for Respondent.
BEFORE GIBBONS, DOUGLAS and SAITTA, JJ.
OPINION
By the Court, DOUGLAS, J.:
Appellant Walter Trujillo was convicted of a felony in 1996
and was honorably discharged from probation the following year. More
than a decade later, he filed a petition for a writ of coram nob is in district
court seeking relief from the judgment of conviction because he was not
informed by his trial counsel of the immigration consequences of his plea.
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At issue is whether the common-law writ of coram nobis may be used in
Nevada. We hold that the common-law writ of coram nobis is available
under Article 6, Section 6(1) of the Nevada Constitution, which grants
district courts the power to issue writs that are proper and necessary to
the 'complete exercise of their jurisdiction, and NRS 1.030, which
continues the common law under some circumstances. But we further
hold that, consistent with NRS 34.724(2)(b) and the exclusive remedy
created by the Legislature for post-conviction challenges to a judgment of
conviction, the writ may only be used by a person who is no longer in
custody on the judgment of conviction being challenged. And to be
consistent with NRS 1.030, we further hold that the writ is limited to the
scope of the common-law writ and therefore may be used only to challenge
errors of fact outside the record that could not have been raised earlier
and that affect the validity and regularity of the decision itself and would
have precluded the judgment from being rendered. Because the
ineffective-assistance-of-counsel claim raised by Trujillo is not within that
limited scope, we affirm the decision of the district court to deny the
petition for a writ of coram nobis.
FACTS AND PROCEDURAL HISTORY
On April 12, 1996, Trujillo, a citizen of Venezuela, was
convicted of attempted burglary and sentenced to serve a term of 12 to 30
months in prison. The sentence was suspended, and a period of probation
not to exceed 2 years was imposed. Trujillo did not appeal his conviction
and never sought post-conviction relief from his conviction. He honorably
discharged probation on December 31, 1997.
The conviction had immediate deportation consequences for
Trujillo. Shortly after sentencing, he was taken into federal custody, and
a federal judge ordered him deported to Venezuela. Trujillo successfully
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challenged the deportation order and was issued a green card and given
permanent-resident status. He took no further action regarding
citizenship until 2010.
Learning in 2010 that he could not become a United States
citizen because of his 1996 conviction, Trujillo filed a petition for a writ of
coram nobis attacking the validity of his conviction. In the petition,
Trujillo claimed that his trial counsel was ineffective for failing to advise
him of the immigration consequences of his conviction, contrary to Padilla
v. Kentucky, 559 U.S. , 130 S. Ct. 1473 (2010). Trujillo asserted that a
petition for a writ of coram nob is was the only available remedy to
challenge his 1996 conviction.
The State argued that the writ of coram nob is was abolished
by NRS 34.724(2)(b), which provides that a post-conviction petition for a
writ of habeas corpus is the exclusive remedy for challenging a judgment
of conviction. Responding to that argument, Trujillo argued that the
legislative history for NRS Chapter 34 does not indicate that a petition for
a writ of coram nobis was one of the common-law remedies replaced by a
habeas corpus petition under NRS 34.724(2)(b). Trujillo asserted that the
provision was only intended to eliminate the post-conviction relief petition
under NRS Chapter 177. 1
The district court construed the petition for a writ of coram
nobis to be a post-conviction petition for a writ of habeas corpus,
determining that a common-law petition for a writ of coram nob is was not
available because the writ was superseded by the exclusive-remedy
1 The history of post-conviction relief in Nevada is set forth in detail
in Pellegrini v. State, 117 Nev. 860, 870-73, 34 P.3d 519, 526-28 (2001).
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language in NRS 34.724(2)(b) and because the claim raised by Trujillo was
a legal claim that exceeded the scope of the common-law writ. Deciding
that the petition was timely filed from the decision in Padilla and that
Padilla applied retroactively, the district court nonetheless denied relief
because Trujillo had not demonstrated that counsel's failure to inform him
of the immigration consequences prejudiced him as he was an
undocumented, illegal immigrant.
DISCUSSION
Preliminarily, we conclude that the district court incorrectly
treated the petition as a post-conviction petition for a writ of habeas
corpus because Trujillo was not in custody at the time he filed his petition.
Nev. Const. art. 6, § 6(1); NRS 34.724(1); Jackson v. State, 115 Nev. 21, 23,
973 P.2d 241, 242 (1999). As a result, the question this court is then
tasked to answer is whether the writ of coram nobis exists in Nevada. To
answer that question, we must address two interrelated issues: the
sources of authority to recognize the writ and the scope of the writ. To set
the stage, we briefly examine the history of the writ.
Historical overview of coram nobis
The writ of coram nobis is an ancient writ that developed in
sixteenth century England. Judge Stanley H. Fuld, The Writ of Error
Coram nobis, 117 N.Y.L.J. Nos. 130-132, at 2212, 2230, 2248 (1947);
James MacPherson, Comment, Coram nobis: "The Wild Ass of the Law,"
11 Loy. L. Rev. 100, 101 (1961-62); Richard B. Amandes, Coram nobis-
Panacea or Carcinoma, 7 Hastings L.J. 48, 49 (1955-56). At the time,
errors of law could be raised to Parliament and the Exchequer, but errors
of fact were excluded from their review. Fuld, supra. The writ of coram
nob is was devised as a means of reviewing errors of fact outside the record
that affected the validity and regularity of the decision itself and would
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have precluded the judgment from being rendered had they been known.
Id. The ancient writ, quae coram nobis residant ("let the record and
proceedings remain before us"), was directed to the Court of the King's
Bench and was issued in the King's name. 2 Id. The writ was sought
before the same court that had entered the judgment and could only be
used to address an error of fact not known to the court and not negligently
concealed by the defendant. Amandes, supra, at 49. Some examples of the
kinds of errors of fact that were reviewed through a writ of coram nobis
include clerical errors, the infancy of the defendant and nonrepresentation
by a guardian, the common-law disability of coverture (the married
woman's disability to appear on her own in court), the death of a party
before the verdict, the insanity of the defendant at the time of trial, a
guilty plea procured by extrinsic fraud, and a valid defense that was not
made because of fraud, duress, or excusable neglect. See People v. Hyung
Joon Kim, 202 P.3d 436, 445-47 (Cal. 2009); see also Fuld, supra;
Amandes, supra, at 49. The writ of coram nobis was rarely used, and by
the time of Blackstone, it was considered to be obsolete. Fuld, supra.
In America, the writ developed slowly. It was acknowledged
as early as 1834 when the United States Supreme Court recognized that
its counterpart, the writ of coram vobis, might be available in state court
to challenge an error of fact relating to a defendant's immunity from suit.
Davis v. Packard, 33 U.S. (8 Pet.) 312, 324 (1834). Despite this early
acknowledgment, over the next century, the writ of coram nobis, at least
2 Contrast the writ of coram vobis ("before you"), which was directed
to the Court of Common Pleas. Fuld, supra. When the writ arrived in
America it generally retained the name of coram nobis, the writ brought
before the Court of the King's Bench.
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federally, remained a rather archaic vehicle for relief; it was acknowledged
as a common-law writ but was not utilized by the courts. See Bronson v.
Schulten, 104 U.S. 410, 416-17 (1881) (recognizing the availability of the
writ at common law but questioning its modern availability and
determining that the court did not have the power to set aside, vacate, and
modify a final judgment after the end of the term during which the
judgment was rendered); United States v. Mayer, 235 U.S. 55, 68-69 (1914)
(recognizing the availability of coram nobis at common law, but expressing
no opinion as to whether coram nobis existed because the errors
complained of, prosecutorial misconduct and juror bias, would not have
been the type of errors reviewable under the common law).
This quiet period ended in 1954 when the United States
Supreme Court reinvigorated the writ of coram nob is in the seminal case
United States v. Morgan, 346 U.S. 502 (1954). Morgan sought to challenge
a federal conviction that was being used to enhance a subsequent state
conviction on the ground that he was denied the right to counsel in the
federal proceeding. 346 U.S. at 503-04. The Supreme Court determined
that a motion in the nature of coram nobis could be sought in a criminal
case based on the all-writs language in 28 U.S.0 § 1651. Id. at 505-11. 28
U.S.C. § 1651(a), then and now, provides that the federal courts "may
issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law." Without
any analysis as to how the writ of coram nobis was necessary and
appropriate to the jurisdiction of the courts, the Morgan majority
appeared to indicate that its usage was agreeable based on the writ's
common-law history and its use in the various states and circuits. Id. at
507-10. While the Court acknowledged that at common law the writ was
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limited to errors of fact, the Court observed that the writ had been used
more broadly in various states and lower courts. Id. at 507-08. The Court
explained that, to achieve justice, a motion in the nature of coram nobis
would be available to correct errors of the most fundamental character
under circumstances where no other remedy was available and sound
reasons existed for failure to seek relief earlier. Id. at 511-12. In a
breathtaking expansion of the common-law writ, the Morgan Court
indicated that a motion in the nature of coram nobis was of the same
general character as a motion under 28 U.S.C. § 2255—meaning it would
be available to correct violations of the Constitution and laws of the
United States. Id. at 505 n.4. This expanded version of coram nobis is
followed today in the federal courts for persons challenging a federal
conviction. 3 See, e.g., Chaidez v. United States, 568 U.S. , 133 S. Ct.
1103 (2013); United States v. Denedo, 556 U.S. 904 (2009); United States v.
George, 676 F.3d 249 (1st Cir. 2012); United States v. Kwan, 407 F.3d
1005, 1011 (9th Cir. 2005), abrogated on other grounds by Padilla, 559
U.S. 356; Klein v. United States, 880 F.2d 250 (10th Cir. 1989).
Unlike the uniform recognition of coram nob is in the federal
courts, coram nobis is a rarer creature in state courts. Only 12 states
recognize coram nobis, and a slim majority of those states follow the
common-law definition and limit the writ to claims of factual error. 4 The
3A federal petition for a writ of coram nobis cannot be filed by a
person seeking to challenge a state conviction because it is a writ used by
a court to correct its own errors, not errors of another jurisdiction. See
Finkelstein v. Spitzer, 455 F.3d 131, 133-34 (2d Cir. 2006); Obado v. New
Jersey, 328 F.3d 716, 718 (3d Cir. 2003).
4 Seven states strictly follow the common-law definition of the writ.
People v. Shipman, 397 P.2d 993, 995 (Cal. 1965); State v. Grisgraber, 439
continued on next page...
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writ of coram nobis is not available in a majority of states because those
states have enacted uniform post-conviction acts that provide a
streamlined, single remedy for obtaining relief from a judgment of
conviction, and that remedy is available to petitioners who are no longer in
custody. 5
...continued
A.2d 377, 378-79 (Conn. 1981); State v. Diaz, 808 N.W.2d 891, 895-96
(Neb. 2012); Gregory v. Class, 584 N.W.2d 873, 877 (S.D. 1998); State v.
Sinclair, 49 A.3d 152, 154-57 (Vt. 2012); Neighbors v. Commonwealth, 650
S.E.2d 514, 516-17 (Va. 2007); Va. Code Ann. § 8.01-677 (2007) (coram
vobis); Jessen v. State, 290 N.W.2d 685, 687-88 (Wis. 1980).
The remaining five jurisdictions that recognize the writ fall
somewhere on the continuum between the common-law approach and the
federal approach. Skok v. State, 760 A.2d 647, 654-60 (Md. 2000)
(following federal approach); Md. Rules § 15-1201-07 (West 2013); Smith
v. United States, 20 A.3d 759, 763 (D.C. 2011) (following federal approach);
Grant v. State, 365 S.W.3d 894, 896 (Ark. 2010) (allowing for four types of
claims to be raised: "insanity at the time of trial, a coerced guilty plea,
material evidence withheld by the prosecutor, or a third-party confession
to the crime during the time between conviction and appeal"); People v.
Bachert, 509 N.E.2d 318, 319 (N.Y. 1987) (permitting coram nobis for
claims of ineffective assistance of appellate counsel); Tenn. Code. Ann. §
40-26-105 (2012) (allowing newly-discovered-evidence claims to be raised
in coram nobis). In West Virginia, the issue of coram nobis is still an open
question, but if recognized, West Virginia appears to follow the common-
law approach. State ex rel. McCabe v. Seifert, 640 S.E.2d 142, 147 n.9 (W.
Va. 2006).
5See,e.g., Ala. R. Crim. P. 32.1; Alaska Stat. § 12.72.010 (2012); Ariz.
R. Crim. P. 32.1; Colo. Rev. Stat. § 18-1-410 (2012); Fla. R. Crim. P. 3.850;
Haw. R. Penal P. 40(a)(1); Idaho Code Ann. § 19-4901 (Supp. 2013); Ind. R.
Post-Conviction P. 1; Iowa Code § 822.2 (West 2003 & Supp. 2013); Me.
Rev. Stat. Ann. tit. 15, § 2124 (2003 & Supp. 2012); Mass. R. Crim. P. 30;
Mich. Ct. R. 6.502(C)(3); Minn. Stat. Ann. § 590.01 (West 2010); Miss.
Code Ann. § 99-39-5 (2007 & Supp. 2012); Mont. Code Ann. § 46-21-101(2011); N.J. R. Crim. P. 3.22-1 (2013); N.C. Gen. Stat. § 15A-1411 (2009);
continued on next page...
8
Nevada has addressed coram nobis only once in any
significant fashion in its criminal jurisprudence—Bigness v. State, 71 Nev.
309, 289 P.2d 1051 (1955). 6 In Bigness, a recidivist criminal filed a
petition for a writ of coram nobis to challenge a 16-year-old Nevada
conviction, which was being used to enhance a sentence in New York, on
the ground that he had been deprived of the right to counsel. Id. at 310-
11, 289 P.2d at 1051-52. In affirming the denial of the petition, this court
observed that Nevada statutes did not provide for coram nobis, and that
even if such a writ were recognized, the petition under consideration
admittedly exceeded the scope of the common-law writ by raising a claim
of error that was on the record and was an error of law, not fact. Id. at
311, 289 P.2d at 1052. The Bigness court rejected the argument that the
writ must be recognized in order to provide a corrective judicial remedy
because another such remedy (habeas corpus) was available during the
...continued
N.D. Cent. Code § 29-32.1-01 (2006); Ohio Rev. Code Ann. § 2953.21(LexisNexis 2006); Okla. Stat. tit. 22, § 1080 (West 2003); Or. Rev. Stat. §
138.510 (2011); R.I. Gen. Laws § 10-9.1-1 (2012); S.C. Code Ann. § 17-27-
20 (2003); Utah Code Ann. §§ 78B-9-102, -104 (LexisNexis 2012); Wash. R.
App. P. 16.4(b).
6 The only other reference to coram nobis in a Nevada criminal case
occurred in Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967). In Peters,
the court briefly noted that coram nobis was available at common law to
correct a mistake of fact discovered after the judgment and that some
states allowed relief in the nature of coram nob is even after the writ had
been abolished. Id. at 301, 429 P.2d at 551. The writ of coram nobis was
not used in Peters or recognized as a currently available remedy.
The writ of coram nobis was abolished in 2005 in civil cases by
NRCP 60(b). See NC-DSH, Inc. v. Garner, 125 Nev. 647, 650 n.1, 218 P.3d
853, 856 n.1 (2009).
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petitioner's period of confinement on the Nevada conviction, and its
present unavailability was due to his inattention to his rights. Id. at 312,
289 P.2d at 1052.
The writ is available in Nevada for persons who are not in custody on the
conviction being challenged
While the Bigness court correctly observed that no specific
Nevada statute addresses the writ of coram nobis, the Bigness decision
ignored two important sources of authority that may sanction use of the
writ of coram nobis in Nevada: NRS 1.030, which recognizes the
applicability of the common law, and the all-writs language in Article 6,
Section 6 of the Nevada Constitution.
NRS 1.030 provides that the "common law of England, so far
as it is not repugnant to or in conflict with the Constitution and laws of
the United States, or the Constitution and laws of this State, shall be the
rule of decision in all the courts of this State." Thus, to apply the common
law, two requirements must be satisfied under NRS 1.030: (1) that coram
nobis be a common-law writ, and (2) that coram nobis not be repugnant to
or in conflict with the Constitution and laws, both federal and state. The
first requirement is rather easily met: coram nobis certainly was a
common-law writ even though it became obsolete in England. The second
requirement is more complicated and requires an examination of the
United States and Nevada Constitutions and post-conviction laws of the
United States and Nevada.
Nothing in the federal system prohibits the recognition of
coram nobis in Nevada. The United States Constitution makes no
mention of coram nob is and does not present any obstacle to recognizing
coram nob is in Nevada. Nothing in federal law prevents a state from
recognizing the writ of coram nobis in state proceedings. In fact, as
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discussed previously, when it comes to challenges to a federal conviction,
coram nobis has been recognized under the all-writs language of 28 U.S.C.
§ 1651, which provides federal courts with the power to "issue all writs
necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law." Thus, neither the United
States Constitution nor federal laws restrict us from recognizing coram
nobis.
Turning to Nevada law, whether the writ of coram nobis is
repugnant to or in conflict with the Nevada Constitution actually leads to
the second source of authority for recognizing the writ: Nevada
Constitution Article 6, Section 6. Article 6, Section 6 of the Nevada
Constitution contains Nevada's version of an all-writs clause:
The District Courts . . . have power to issue writs
of Mandamus, Prohibition, Injunction, Quo-
Warranto, Certiorari, and all other writs proper
and necessary to the complete exercise of their
jurisdiction.
The writ of coram nob is is constitutionally authorized, and therefore not
repugnant to or in conflict with the constitution, if the writ is proper and
necessary to the complete exercise of the jurisdiction of the district courts.
When posed a similar question regarding coram nobis and the federal all-
writs language set forth in 28 U.S.C. § 1651, 7 the United States Supreme
Court determined that coram nobis was authorized by § 1651 for a person
who was not in custody on the conviction being challenged because at
common law coram nobis was a step in the criminal case. United States v.
7 Section
1651 provides that the federal courts "may issue all writs
necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law."
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Morgan, 346 U.S. 502, 505 n.4 (1954). We reach a similar conclusion. In
Nevada, original jurisdiction over a criminal case, except as provided by
law, is vested in the district courts. Nev. Const. art. 6, § 6; NRS 171.010;
Walker v. State, 78 Nev. 463, 472, 376 P.2d 137, 141 (1962). And we have
previously recognized that the district courts have continuing jurisdiction
to correct certain types of errors. See Warden v. Peters, 83 Nev. 298, 301,
429 P.2d 549, 551 (1967). We conclude that an important component of
the district court's jurisdiction over a criminal case is to correct mistakes
of fact that would have prevented a conviction and for which there is or
was no other available legal remedy. This is so even after the defendant
has completed serving the sentence imposed and is no longer in custody on
the conviction being challenged. Thus, coram nobis is not repugnant to or
in conflict with the Nevada Constitution.
Whether the writ of coram nobis would be in conflict with
Nevada law is a more complicated question. The State argues that the
writ of coram nob is was abolished by the exclusive-remedy language set
forth in NRS 34.724(2)(b), and thus, the writ would be in conflict with that
Nevada statute. The issue, however, is not that clear-cut. NRS
34.724(2)(b) provides that a post-conviction petition for a writ of habeas
corpus "[c]omprehends and takes the place of all other common-law,
statutory or other remedies which have been available for challenging the
validity of the conviction or sentence, and must be used exclusively in
place of them." But unlike the majority of other states that have similar
provisions in their post-conviction relief statutes and therefore have
refused to recognize the writ of coram nobis, see supra note 5 and
accompanying text, the exclusive remedy adopted in NRS 34.724(2)(b) is
not available to all persons who have sustained a conviction in Nevada. A
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prerequisite to the constitutional authority to grant habeas relief is the
custodial status of the petitioner: the petitioner must be in actual custody
or have suffered a criminal conviction and not completed the sentence
imposed pursuant to the judgment of conviction. Nev. Const. art. 6, § 6(1).
A post-conviction petition for a writ of habeas corpus is further limited to a
person who is "under sentence of death or imprisonment." NRS 34.724(1).
These two provisions thus require a habeas petitioner to be under a
sentence of imprisonment for the conviction he challenges at the time the
petition is filed. Jackson v. State, 115 Nev. 21, 23, 973 P.2d 241, 242
(1999). For a person who is not in custody, Nevada's post-conviction
habeas corpus scheme does not apply and would not preclude a writ of
coram nobis.8 Conversely, if a person is in custody on the conviction being
• challenged, a writ of coram nob is is not available and habeas corpus must
be sought as the exclusive remedy to challenge the conviction. 9 This
distinction between persons who are under sentence of imprisonment and
those who are not for purposes of the writ of coram nob is does not violate
8 We recognize that the writ of coram nob is has been abolished in
civil cases under NRCP 60. However, we conclude that NRCP 60 would
not preclude the writ of coram nobis in a criminal case. When faced with a
similar suggestion, the United States Supreme Court rejected the
argument that language in FRCP 60 abolishing coram nobis in civil cases
also ended the writ in criminal cases because the writ of coram nob is
served as a step in a criminal case. Morgan, 346 U.S. at 505 n.4. We
agree and conclude that NRCP 60 does not preclude use of the writ in
criminal cases.
9 There are limited exceptions that are not relevant here. See
generally NRS 34.724(2)(a) (providing that habeas corpus is "not a
substitute for and does not affect any remedies which are incident to the
proceedings in the trial court or the remedy of direct review of the
sentence or conviction").
13
any constitutional or legal rights as the writ of coram nob is is not proper
and necessary to the jurisdiction of the district courts where another legal
remedy, a post-conviction petition for a writ of habeas corpus, is available
to challenge the conviction.
Thus, we hold that Article 6, Section 6 of the Nevada
Constitution and NRS 1.030 authorize the common-law writ of coram
nobis for a person who is not in custody on the conviction being
challenged. To the extent that our decision in Bigness suggested that the
common-law writ did not exist in Nevada, we overrule that decision.
The writ of coram nobis is limited in scope
We turn then to the scope of the writ. As stated earlier,
jurisdictions recognizing the writ have adopted different approaches to its
scope. Two approaches may be said to be in the majority—the common-
law approach and the federal approach adopted in Morgan. Given the
sources of authority for recognizing the writ in Nevada, as discussed
above, we conclude that the writ in Nevada has the same scope as the
common-law writ. We decline to follow the Morgan Court and expand the
writ beyond its common-law scope because we can find no authority, and
none is offered by the parties, that would allow this court to create a new
substantive remedy out of whole cloth, appending only the name of coram
nob is to this new creation. Such a remedy as created by the Morgan Court
could only be created by our Legislature, and we leave it in its hands to
fashion. At common law, the writ of coram nobis existed to correct errors
of fact, and to the extent that it exists in Nevada, it exists as a common-
law writ.
Consistent with the common law, the writ of coram nob is may
be used to address errors of fact outside the record that affect the validity
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and regularity of the decision itself and would have precluded the
judgment from being rendered. At common law, many of these errors of
fact involved personal jurisdiction—errors regarding the status of the
party which would prevent a judgment from being entered against the
party. The common-law examples of coverture and infancy have been
eliminated through the evolution of legal principles relating to women and
children, but the competency of the defendant at the time of the plea or
trial is an example that still has relevance today. See NRS 178.405(1)
(requiring the suspension of proceedings when a doubt rises as to the
competence of the defendant). Although we do not attempt to precisely
define the realm of factual errors that may give rise to a writ of coram
nobis, that realm is limited to errors involving facts that were not known
to the court, were not withheld by the defendant, and would have
prevented entry of the judgment. For example, a factual error does not
include claims of newly discovered evidence because these types of claims
would not have precluded the judgment from being entered in the first
place. See Hyung Joon Kim, 202 P.3d at 453; Commonwealth v. Morris,
705 S.E.2d 503, 506 (Va.), cert. denied, 565 U.S. , 132 S. Ct. 115 (2011).
And legal errors fall entirely outside the scope of the writ. See, e.g., Hyung
Joon Kim, 202 P.3d at 446; State v. Diaz, 808 N.W.2d 891, 896 (Neb.
2012). A writ of coram nobis is the forum to correct only the most
egregious factual errors that would have precluded entry of the judgment
of conviction had the error been known to the court at the time.
A writ of coram nobis is not, however, the forum to relitigate
the guilt or innocence of the petitioner. We have long emphasized the
importance of the finality of judgments, and we are gravely concerned that
recognizing this writ, even in the very limited form that we do today, will
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result in a proliferation of stale challenges to convictions long since final.
See Jackson v. State, 115 Nev. 21, 23 n.2, 973 P.2d 241, 242 n.2 (1999);
Groesbeck v. Warden, 100 Nev. 259, 261, 679 P.2d 1268, 1269 (1984).
Given these concerns, we hold that any error that was reasonably
available to be raised while the petitioner was in custody is waived, and it
is the petitioner's burden on the face of his petition to demonstrate that he
could not have reasonably raised his claims during the time he was in
custody.
Having recognized that a writ of coram nob is may be filed in
district court by a person who is no longer in custody to challenge a
judgment of conviction based on errors of fact, we necessarily must
determine whether the district court's order resolving such a petition is
appealable. 1 ° Generally, this court has appellate jurisdiction only where a
statute or court rule provides for an appeal. Castillo v. State, 106 Nev.
349, 352, 792 P.2d 1133, 1135 (1990). As the State points out, there is no
specific statute or court rule applicable to criminal cases that authorizes
an appeal from an order resolving a petition for a writ of coram nobis.
However, NRAP 3A(b)(1) provides that an appeal may be taken from a
final judgment in a civil action. Coram nobis, much like habeas corpus,
cannot be strictly characterized as civil or criminal for all purposes. See
Hill v. Warden, 96 Nev. 38, 40, 604 P.2d 807, 808 (1980). Thus, although
the writ is a step in the criminal process, for purposes of determining the
appealability of an order resolving a petition for a writ of coram nobis, we
10At common law, the writ was filed in the court alleged to have
made the error of fact preventing entry of the judgment of conviction. This
necessarily means that the writ of coram nob is is not available in an
original proceeding in this court.
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are guided by the approach in the federal courts to classify the writ
proceeding as a civil action. FRAP 4(a)(1)(C), since 2002, provides that
coram nob is is appealable as a civil judgment. Even before that provision
was added to FRAP 4(a)(1), federal courts had determined that the writ
should be treated as civil for appeal purposes. See, e.g., United States v.
Keogh, 391 F.2d 138, 140 (2d Cir. 1968); United States v. Cooper, 876 F.2d
1192, 1193-94 (5th Cir. 1989), overruled on other grounds by Smith v.
Barry, 502 U.S. 244 (1992); United States v. Johnson, 237 F.3d 751, 754
(6th Cir. 2001); United States v. Craig, 907 F.2d 653, 655-57 (7th Cir.
1990), amended at 919 F.2d 57. Thus, we conclude that the writ of coram
nobis should be treated as a civil writ for appeal purposes and a final
judgment resolving a petition for a writ of coram nobis therefore is
appealable pursuant to NRAP 3A(b)(1).
Application to Trujillo
Having decided that a petition for a writ of coram nob is exists
in limited circumstances, we must determine whether the district court
abused its discretion in denying the petition. See Hyung Joon Kim, 202
P.3d at 448 (recognizing that "a lower court's ruling on a petition for the
writ is reviewed under the abuse of discretion standard"); Jessen, 290
N.W.2d at 688 (recognizing that coram nobis is "a discretionary writ").
Consistent with our decision today, the remedy of coram nobis was
available to Trujillo because he was no longer in custody on the judgment
being challenged when he filed his petition. We turn then to the merits of
the petition.
In his petition, Trujillo claimed that he received ineffective
assistance of counsel because his trial counsel failed to inform him about
the immigration consequences of his conviction. This claim fell outside the
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scope of claims permissible in a petition for a writ of coram nobis. A claim
of ineffective assistance of counsel involves legal error. See Hyung Joon
Kim, 202 P.3d at 454; Diaz, 808 N.W.2d at 896; Morris, 705 S.E.2d at 507-
08. While there is undeniably a factual underpinning to a claim of
ineffective assistance of counsel, the ultimate issue is the legal question of
whether the representation was constitutionally adequate: whether the
performance of counsel fell below an objective standard of reasonableness
and whether there was resulting prejudice such that there is a reasonable
probability that, but for counsel's errors, the outcome of the proceedings
would have been different. See Strickland v. Washington, 466 U.S. 668,
687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505
(1984) (adopting the test in Strickland). Because Trujillo's claim was not
properly raised in a petition for a writ of coram nobis, we conclude that the
district court did not abuse its discretion in denying the petition. See
Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (holding that a
correct result will not be reversed simply because it is based on the wrong
reason).
CONCLUSION
In discussing the writ of coram nobis, the First Circuit Court
of Appeals has indicated that the writ should be "hen's-teeth rare." United
States v. George, 676 F.3d 249, 254 (1st Cir. 2012). We echo that
sentiment. Coram nobis, where recognized, is an extraordinary remedy;
one necessary only to achieve justice. The common-law writ of coram
nobis is available in Nevada only for petitioners who are no longer in
custody on the judgment being challenged and only to address errors of
fact outside the record that were not known to the court entering the
judgment, could not have been raised earlier, and affect the validity and
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regularity of the decision itself in that they would have precluded the
judgment from being rendered.
_
Douglas
J.
J.
Saitta
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