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A Truly Titillating Topical Discussion of Ancient Abolished Writs

By William Peacock, Esq. | Last updated on

Twelve years ago, Damaris Rawlins was arrested for driving under the influence in Kansas City and was taken to the local drunk tank. Upon arrival, she engaged in passive resistance and went limp. The police carried her to a cell, where she said that they slammed her into the wall and floor of the cell and assaulted her. She kicked an officer's shins three times (in self-defense, of course).

She was convicted of battery of a police officer after her attorney allegedly refused to submit photographs of her injuries to the court and after the judge denied a self-defense jury instruction.

Rawlins did not receive jail time. Instead, she received 3 years' probation. No big deal, right? But of course, convictions carry collateral consequences far beyond a cell. She timely appealed and sought post-conviction relief in state court, but unfortunately, the courts themselves weren't nearly as timely, as it took about 10 years before her state remedies were exhausted.

What's a gal's remedy when so many state courts get it wrong? Writs to the feds, of course!

Writ of Habeas Corpus

"This case is too cold!" exclaimed Goldilocks. Habeas relief is only available when one is still in custody. And no, collateral post-probation consequences do not count for "in custody" purposes.

Writ of Audita Querela

"This case is too warm!" exclaimed Goldilocks. Audita querela, not to be confused with Hakuna Matata, is an ancient common law writ which translates to "the complaint having been heard." Traditionally, it was used for post-judgment relief in such cold and impersonal topics as debtor and creditor disputes.

In 2002, the Tenth Circuit explained, "a writ of audita querela is used to challenge a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition." Alas, the last time anyone can recall the writ being used in a Federal court was 1946 in Oliver v. City of Shattuck, as Federal Rule of Civil Procedure 60(e) abolished the writ.

Writs of Coram Nobis and Vobis

"This case is just right (or not)!" a relieved and soon-to-be disappointed Goldilocks exclaimed. Writs of coram nobis and coram vobis are also ancient common law devices. Both were available in extremely rare cases where certain factors, existing at the time of judgment, were not discovered until later (such as insanity) - even after final judgment.

(Nobis is "us" or the "royal we", meaning the King's Court. Vobis is "you" or the judges of the Common Pleas court. In 'Merica, we use 'em interchangeably).

Rule 60(e) also abolished this writ in civil cases. However, SCOTUS resurrected it in United States v. Morgan (1954) in "extraordinary [criminal] cases presenting circumstances compelling its use to achieve justice."

Got all that? Good, because poor Goldilocks (or Rawlins) is in the wrong house.

Coram nobis is a remedy only available in the same court as the initial case (coram nobis translates to "before us.") The Tenth Circuit ruled against Rawlins, noting "It has long been settled that federal courts have no jurisdiction to issue writs of coram nobis with respect to state criminal court judgments."

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