CAL POST CON " VEHICLES " CORAM NOBIS " INEFFECTIVE ASSISTANCE CLAIM CANNOT BE RAISED BY CORAM NOBIS CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " IAC CLAIM CANNOT BE RAISED BY CORAM NOBIS
People v. Cuatete, 2010 WL 1744891, *3 n.4 (Cal. Ct. App. May 3, 2010) ([A] petition for writ of error coram nobis[] precludes the issue of ineffective assistance of counsel.).

SENTENCE " GROUNDS " DUE PROCESS " FAILURE TO APPLY BEYOND REASONABLE DOUBT STANDARD TO IMPOSE SENTENCE HARSHER THAN GUIDELINES SENTENCE VIOLATES DUE PROCESS
Despite the fact that the U.S. Sentencing Guidelines are no longer mandatory, if the Guidelines are followed by a district court at sentencing, then any facts found that increase the Guideline sentence must be proved by the government beyond a reasonable doubt. United States. v. Booker, 543 U.S. 220 (2005). However, many courts continue to assume that a preponderance of evidence standard is sufficient to impose harsher sentences, which is ill advised and could result in a remand for resentencing. See e.g., United States v. Fisher, 502 F.3d 293 (3d Cir. 2007); United States v. Villareal-Amarillas, 526 F.3d 892 (8th Cir. 2009). While the courts may view the Sentencing Guidelines as advisory, the Guidelines are still considered important and relevant. But because there remain significant inconsistencies regarding which standards of proof are being applied in a given circumstance, its incumbent on counsel to apply the standard that best serves the client, which in most cases will be the beyond a reasonable doubt standard. To quote Judge Nancy Gertner: Due Process requires procedural safeguards and a heightened standard of proof, namely, proof beyond a reasonable doubt. United States v. Pimental, 367 F. Supp. 2d 143, 154 (D. Mass. 2005). See Alan Ellis & Mark H. Allenbaugh, Standards of Proof at Sentencing, http://www.alanellis.com/CM/Publications/Standards-of-Proof-at-Sentencing.asp (2010).

I. General standard for federal coram nobis relief in the Ninth Circuit
Coram nobis relief is available to challenge the validity of a conviction, even though the sentence has been fully served, under circumstances compelling such action to achieve justice. United States v. Morgan, 346 U.S. 502, 511 (1954). It fills a void in the availability of post-conviction remedies in federal criminal cases, Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985), providing petitioners who have been released from custody an opportunity to challenge convictions for errors of fact . . . in those cases where the errors [are] of the most fundamental character, that is, such as rendered the proceeding itself invalid. Hirabayashi v. United States, 828 F.2d 591, 604 (1987). To qualify for coram nobis relief, four requirements must be satisfied: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. United States v. Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007) (quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987)). Both the Ninth Circuit and the U.S. Supreme Court have reiterated that the writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable. Riedl, 496 F.3d at 1006; see also United States v. Morgan, 346 U.S. 502, 511 (1954) (characterizing the writ as an extraordinary remedy that should be granted only under circumstances compelling such action to achieve justice.); Carlisle v. United States, 517 U.S. 416, 429 (1996) ([I]t is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate.) (quoting United States v. Smith, 331 U.S. 469, 475 n. 4 (1947)) (second alteration in original); Hirabayashi, 828 F.2d at 604 (describing the writ as extraordinary); Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002) (noting that the writ is used only to review errors of the most fundamental character . . . .); Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (the writ fills a very precise gap in federal criminal procedure.).

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " CORAM NOBIS " NONSTATUTORY MOTION TO VACATE " THIS VEHICLE CANNOT RAISE A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Mbaabu, 213 Cal.App.4th 1139, 152 Cal.Rptr.3d 818, 821 (4th Dist.Feb. 14, 2013) (We hold that a motion to vacate the judgment in the nature of coram nobis is not a proper vehicle for relief from a constitutional violation of the defendant's right to effective assistance of counsel.). Further, even if defendant's motion was treated as a petition for writ of habeas corpus, it should have been denied as untimely and duplicative, in addition to lacking in any evidence from the defendant that he would have rejected the offer and gone to trial had he been properly advised of immigration consequences.

CAL POST CON " VEHICLES " CORAM NOBIS " GROUNDS " CORAM NOBIS CAN BE MADE GRANTED ON GROUNDS THAT WOULD SUPPORT A MOTION TO WITHDRAW A PLEA UNDER PENAL CODE 1018 INCLUDING DURESS, FRAUD, OR OTHER FACT OVERREACHING THE DEFENDANTS FREE WILL AND JUDGMENT
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 821 (4th Dist. Feb. 14, 2013) (To be entitled to relief on a postjudgment motion to vacate the judgment, the courts have required a showing essentially identical to that required under section 1018, that is, on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits.); citing People v. Gari, 199 Cal.App.4th 510, 523, 132 Cal.Rptr.3d 80 (4th Dist. Sept. 12, 2011).

CAL POST CON " VEHICLES " CORAM NOBIS " GROUNDS
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 821 (4th Dist. Feb. 14, 2013) (The grounds on which a litigant may obtain relief via a writ of error coram nobis are narrower than on habeas corpus. (People v. Kim, supra, 45 Cal.4th at p. 1091, 90 Cal.Rptr.3d 355, 202 P.3d 436, citing In re Lindley (1947) 29 Cal.2d 709, 724"725, 177 P.2d 918.) The writ's purpose is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court. (Kim, at p. 1091, 90 Cal.Rptr.3d 355, 202 P.3d 436, citing People v. Adamson (1949) 34 Cal.2d 320, 326"327, 210 P.2d 13.)).

CAL POST CON " VEHICLES " CORAM NOBIS " NOT AVAILABLE TO CORRECT ERRORS OF LAW
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 824 (4th Dist. Feb. 14, 2013) (Because the writ of error coram nobis applies where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment, the remedy does not lie to enable the court to correct errors of law. (People v. Kim, supra, 45 Cal.4th at p. 1093, 90 Cal.Rptr.3d 355, 202 P.3d 436.) This includes constitutional claims, such as a claim that counsel was ineffective in failing to admonish a defendant of the immigration consequences of his conviction. (Id. at pp. 1095, 1104, 1108"1109, 90 Cal.Rptr.3d 355, 202 P.3d 436.).

CAL POST CON " VEHICLES " CORAM NOBIS " DUE DILIGENCE " DEFENDANT FAILED TO PURSUE REMEDIES WITH DUE DILIGENCE BY FAILING TO APPEAL ORIGINAL DENIAL OF MOTION TO WITHDRAW PLEA
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 825 (4th Dist. Feb. 14, 2013) (Finally, defendant did not demonstrate diligence in pursuing his remedies by failing to appeal the denial of his original motion, given that Padilla had already been decided, and was cited by defendant, when the first motion was made.).

Other

CAL POST CON " VEHICLES " CORAM NOBIS
People v. Gari, 199 Cal.App.4th 510 (4th Dist. Sept. 12, 2011) (whether and when defendant committed charged offenses were facts of which defendant had knowledge when he pleaded guilty, and thus a writ of error coram nobis was not available to defendant).

SENTENCE " GROUNDS " DUE PROCESS " FAILURE TO APPLY BEYOND REASONABLE DOUBT STANDARD TO IMPOSE SENTENCE HARSHER THAN GUIDELINES SENTENCE VIOLATES DUE PROCESS
Despite the fact that the U.S. Sentencing Guidelines are no longer mandatory, if the Guidelines are followed by a district court at sentencing, then any facts found that increase the Guideline sentence must be proved by the government beyond a reasonable doubt. United States. v. Booker, 543 U.S. 220 (2005). However, many courts continue to assume that a preponderance of evidence standard is sufficient to impose harsher sentences, which is ill advised and could result in a remand for resentencing. See e.g., United States v. Fisher, 502 F.3d 293 (3d Cir. 2007); United States v. Villareal-Amarillas, 526 F.3d 892 (8th Cir. 2009). While the courts may view the Sentencing Guidelines as advisory, the Guidelines are still considered important and relevant. But because there remain significant inconsistencies regarding which standards of proof are being applied in a given circumstance, its incumbent on counsel to apply the standard that best serves the client, which in most cases will be the beyond a reasonable doubt standard. To quote Judge Nancy Gertner: Due Process requires procedural safeguards and a heightened standard of proof, namely, proof beyond a reasonable doubt. United States v. Pimental, 367 F. Supp. 2d 143, 154 (D. Mass. 2005). See Alan Ellis & Mark H. Allenbaugh, Standards of Proof at Sentencing, http://www.alanellis.com/CM/Publications/Standards-of-Proof-at-Sentencing.asp (2010).

Federal Coram Nobis relief in the Ninth Circuit
By Rose Cahn I. General standard for federal coram nobis relief in the Ninth Circuit Coram nobis relief is available to challenge the validity of a conviction, even though the sentence has been fully served, under circumstances compelling such action to achieve justice. United States v. Morgan, 346 U.S. 502, 511 (1954). It fills a void in the availability of post-conviction remedies in federal criminal cases, Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985), providing petitioners who have been released from custody an opportunity to challenge convictions for errors of fact . . . in those cases where the errors [are] of the most fundamental character, that is, such as rendered the proceeding itself invalid. Hirabayashi v. United States, 828 F.2d 591, 604 (1987). To qualify for coram nobis relief, four requirements must be satisfied: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. United States v. Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007) (quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987)). Both the Ninth Circuit and the U.S. Supreme Court have reiterated that the writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable. Riedl, 496 F.3d at 1006; see also United States v. Morgan, 346 U.S. 502, 511 (1954) (characterizing the writ as an extraordinary remedy that should be granted only under circumstances compelling such action to achieve justice.); Carlisle v. United States, 517 U.S. 416, 429 (1996) ([I]t is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate.) (quoting United States v. Smith, 331 U.S. 469, 475 n. 4 (1947)) (second alteration in original); Hirabayashi, 828 F.2d at 604 (describing the writ as extraordinary); Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002) (noting that the writ is used only to review errors of the most fundamental character . . . .); Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (the writ fills a very precise gap in federal criminal procedure.).