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 nobis 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. 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
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 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. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Trujillo asserted that a petition for a writ of coram nobis was the only available remedy to challenge his 1996 conviction.
The State argued that the writ of coram nobis 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.
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 nobis was not available because the writ was superseded by the exclusive-remedy 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.
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
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 nobis 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 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.
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, 8 L.Ed. 957 (1834). Despite this early acknowledgment, over the next century, the writ of coram nobis, at least 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, 26 L.Ed. 797 (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, 35 S.Ct. 16, 59 L.Ed. 129 (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 nobis in the seminal case United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (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, 74 S.Ct. 247. 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.C § 1651. Id. at 505-11, 74 S.Ct. 247. 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
Unlike the uniform recognition of coram nobis 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.
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 nobis and does not present any obstacle to recognizing coram nobis in Nevada. Nothing in federal law prevents a state from recognizing the writ of coram nobis in state proceedings. In fact, as 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 writ of coram nobis 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,
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 nobis 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 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.
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.
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 nobis 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 nobis may be used to address errors of fact outside the record that affect the validity 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, 90 Cal.Rptr.3d 355, 202 P.3d at 453; Commonwealth v. Morris, 281 Va. 70, 705 S.E.2d 503, 506 (Va.), cert. denied, 565 U.S. ___, 132 S.Ct. 115, 181 L.Ed.2d 39 (2011). And legal errors fall entirely outside the scope of the writ. See, e.g., Hyung Joon Kim, 90 Cal.Rptr.3d 355, 202 P.3d at 446; State v. Diaz, 283 Neb. 414, 808 N.W.2d 891, 896 (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 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
Having recognized that a writ of coram nobis 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.
Having decided that a petition for a writ of coram nobis exists in limited circumstances, we must determine whether the district court abused its discretion in denying the petition. See Hyung Joon Kim, 90 Cal.Rptr.3d 355, 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 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, 90 Cal.Rptr.3d 355, 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 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 regularity of the decision itself in that they would have precluded the judgment from being rendered.
We concur: GIBBONS and SAITTA, JJ.
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, 361 Md. 52, 760 A.2d 647, 654-60 (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, 2010 Ark. 286, 365 S.W.3d 894, 896 (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, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318, 319 (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, 220 W.Va. 79, 640 S.E.2d 142, 147 n. 9 (2006).
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).