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.
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
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 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, ...