WALTER TRUJILLO, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

FILED 

OCT 1 0 2013 

No. 58937 

129 Nev., Advance Opinion 75 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

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. 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 
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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

2 
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 

1The 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). 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

3 
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 nobisPanacea 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 

SUPREME COURT 

OF 

NEVADA 

(0) I947A 

4 
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 

2Contrast 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. 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 
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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

6 
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. 4The 

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). 

4Seven 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... 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

7 
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 commonlaw 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). 6In 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). 

6The 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). 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

9 
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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

10 
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, QuoWarranto, 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 allwrits language set forth in 28 U.S.C. § 1651, 7the 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. 

7Section 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." 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

11 
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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

12 
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. 9This 

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 

8We 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. 

9There 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 commonlaw 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 commonlaw 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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

14 
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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

15 
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. 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

16 
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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

17 
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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

18 
J. 

regularity of the decision itself in that they would have precluded the 

judgment from being rendered. 

_ 

Douglas 

J. 

Saitta 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

19