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View Full Version : Filing Writ of Error Coram Nobis pro per?


wiedergeboren
07-06-2011, 12:01 AM
hey guys, I don't have money for a lawyer, since it's all tied up in investments, and want to restore my rights after having expunged a misdemeanor successfully. I know, thanks to this site, that I need to file this writ, and would imagine it needs to be done on the existing case ... will they dismiss it because they case is dismissed, causing me to have to file a new case somehow? Also, how the heck would I draft the document? is there any readily made form available online?

I would appreciate the help in how one goes about filing a coram nobis writ pro per, but I do know thanks to legal research at the library and online that it's possible in california. My apologies if there's already a tutorial that covers this procedure as done WITHOUT an attorney, if possible.

In Freedom, Wiedergeboren (born again.)

Thanks for the help.

anthonyca
07-06-2011, 7:32 AM
The people vs Kim greatly reduced the use of writ of error coram in California.
http://caselaw.lp.findlaw.com/data2/californiastatecases/s153183.pdf

I know someone who has a letter from his attorney, dated after sentencing, where his attorney writes it occurred to her that he would loose his gun rights and the sentence was then explained to him, the docket shows he was never in court. It doesn't get much worse than that.

This sounds like a DV. If so, here is an interesting case. http://calguns.net/calgunforum/showthread.php?t=417935 This case is also interesting from a 10th amendment angle.

Please think about doing this on your own. You will most likely cause more harm than good, both to yourself and the greater RKBA movement.

berto
07-06-2011, 10:26 AM
Pay for counsel.

dotalchemy
07-06-2011, 10:30 AM
hey guys, I don't have money for a lawyer,

Pay for counsel.

Awesome answer. Will read again. A+++ :rolleyes:

wiedergeboren
07-06-2011, 10:39 AM
With all due respect, I don't think the precedent from the people v Kim applies, after looking over your information, as I have already expunged the record, which is in reality a dismissal ipso facto. Thus, what I am looking to do is not vacate a plea, but to remove a restriction which resulted from a dismissed case, and thus should not be in place.

I've done a lot of filings pro per before, I'm confident in what I'm doing, I just need to find the right forms to do this myself. I know there has to be a lawyer or two on calguns.

I have legitimate reasons to be afraid for my life, and a misdemeanor charge that happened when I was barely an adult is inhibiting my ability to legally exercise my human right to defend myself in my own home, which is especially ludicrous as that charge has been dismissed.

I understand the concern here, as any idiot can mess things up for all of us, with a ruling class so afraid of our god given rights. But - the people vs kim resulted from taking a gamble it seems, and I'm going to use the writ to correct a clerical error in which penalties are rendered upon a dismissed case, not to challenge an old conviction. I don't think that I'm going to do anything to your rights, so please, if someone could help me find the form so I can get the State to acknowledge mine, I'd appreciate it very much.

ohsmily
07-06-2011, 10:50 AM
With all due respect, I don't think the precedent from the people v Kim applies, after looking over your information, as I have already expunged the record, which is in reality a dismissal ipso facto. Thus, what I am looking to do is not vacate a plea, but to remove a restriction which resulted from a dismissed case, and thus should not be in place.

I've done a lot of filings pro per before, I'm confident in what I'm doing, I just need to find the right forms to do this myself. I know there has to be a lawyer or two on calguns.

I have legitimate reasons to be afraid for my life, and a misdemeanor charge that happened when I was barely an adult is inhibiting my ability to legally exercise my human right to defend myself in my own home, which is especially ludicrous as that charge has been dismissed.

I understand the concern here, as any idiot can mess things up for all of us, with a ruling class so afraid of our god given rights. But - the people vs kim resulted from taking a gamble it seems, and I'm going to use the writ to correct a clerical error in which penalties are rendered upon a dismissed case, not to challenge an old conviction. I don't think that I'm going to do anything to your rights, so please, if someone could help me find the form so I can get the State to acknowledge mine, I'd appreciate it very much.

When did the conviction occur? In what county did the conviction occur? Is it a 10 year prohibition or lifetime?

dantodd
07-06-2011, 11:36 AM
Unless you have an example where this approach has been successful in recovering gun rights in the past I suspect you have a long row to hoe even if you do get this writ granted that you don't know how to write.

I would start at the court clerk if I were looking to find out how to file and perhaps the librarian at the law library for examples you can use to write yours. Don't law libraries have Pleadings and Practices any more? I don't know if a writ of Error Coram Nobis is common enough to be in P&P but it's a good place to start.

wiedergeboren
07-06-2011, 11:52 AM
thanks for the tip dantodd. It's been routinely successful in california in the past, according to the calguns archives. google. I'm just the first person to my knowledge braving it without representation.

ohsmily, ten year prohibition on a misdemeanor, and the charges have already been statuatorily dismissed.

bwiese
07-06-2011, 11:59 AM
I would say that you need competent legal help on this. If you screw up, you're screwing yourself.

What you may be thinking "that people have done for themselves frequently" is instead the "17(b)"
reductions to misdemeanors commonly done for nonviolent/non-gun-prohibiting 'wobblers' (relatively
minor drug sales, college pranks that somehow end up with a vandalism or burglary charge, etc.)

dantodd
07-06-2011, 12:23 PM
thanks for the tip dantodd. It's been routinely successful in california in the past, according to the calguns archives. google. I'm just the first person to my knowledge braving it without representation.

ohsmily, ten year prohibition on a misdemeanor, and the charges have already been statuatorily dismissed.

If there are a number of calgunners who have done this you should ask them for a copy of their writ. That will give you what, substantially, has to be included. I have only heard about the prohibitions being lifted as Bill describes here on CGN and haven't heard of anyone else using a writ of Error Coram Nobis but I have certainly not followed EVERY case.

wiedergeboren
07-06-2011, 12:33 PM
I would say that you need competent legal help on this. If you screw up, you're screwing yourself.

What you may be thinking "that people have done for themselves frequently" is instead the "17(b)"
reductions to misdemeanors commonly done for nonviolent/non-gun-prohibiting 'wobblers' (relatively
minor drug sales, college pranks that somehow end up with a vandalism or burglary charge, etc.)

any reccomendations as to whom ? also, how much would I expect to spend?

bwiese
07-06-2011, 1:09 PM
While rights restoral may be the purview of an ordinary good attorney, in this case, please talk to a good gun lawyer....

Depends on your location - in SoCal, Chuck Michel's firm, and Jason Davis and Bruce Colodny all provide fine service. Northern Califonia - talk to Don Kilmer.

In fact, Chuck's firm has written this document on rights restoral:
http://michellawyers.com/wp-content/uploads/2010/10/Rights-Restoration-Procedures.pdf

Also, their excellent resource site Calgunlaws.com:
http://www.calgunlaws.com/index.php/topic-summaries/530-summary-restoration-of-firearm-rights.html

From these sites:
"A Writ of Error Coram Nobis is only available to those who are convicted but at the time
of the conviction unknown facts existed that, if known to the court and defense, would
have prevented a conviction in the case. (i.e. a person is convicted of statutory rape and
the victim was over the age of 18 at the time of the incident and these facts were not
known to the defense or the court)."
- My offense is a "straight" felony, is there anything else I can do?

There are some situations where "straight" felony convictions which cannot be reduced to
a misdemeanor can still be removed from the criminal record. This requires an evaluation of
the facts surrounding the felony conviction to determine if a Writ of Error Coram Nobis can
be filed.


a. What is a Writ of Error Coram Nobis?

A Writ of Error Coram Nobis is essentially a motion to vacate the plea.
If successful, the conviction is vacated and the case is procedurally
brought back to the moment before the plea was taken. This creates
a risk because the District Attorneys Office may choose to continue
the prosecution of the case. We cannot know if the District Attorney
will choose to continue prosecution of the case, but factors that may
help determine that are if the conviction is within the past few years,
what the conviction was for, and the individual's criminal history. It
must be explained that although the conviction is now vacated, the
offense may still be prosecuted.

b. I was convicted of a straight felony by a jury, can I still get a
Writ of Error Coran Nobis?

The Writ vacates a plea therefore, it can only be filed in cases where
the individual was convicted by plea. Therefore, if the individual was
convicted by a court or jury, the Writ is not applicable and cannot be
filed.

c. Why does it matter whether I pled guilty to a straight felony
or was convicted by a jury?


A Writ is premised upon the following requirements:
1) The Petitioner has shown that some fact existed which was not presented at the plea, and he
would not have entered the plea if he would have known about the omitted fact (the "mistake of
fact" must be such that it would have been impossible to convict a person for the offense charged
if the fact had been known);
2) The Petitioner has shown that the evidence does not go to the merits of the issues in the case;
3) The Petitioner has shown that the facts on which he relies were not known to him and could not
in the exercise of due diligence have been known to him at a time substantially earlier that the time
of his motion for the writ. Generally, if these factors are met, the writ will be granted. An individuals
case must be evaluated under these factors. In evaluating the writ, these are the only factors that
should be looked upon, however, the Court and the District Attorneys Office will take into consideration
the underlying case and the facts surrounding it.
I will unfortunately note that the word 'rare' is frequently used in coram nobis references when Googling for the term.
This alone should goad you into proper representation and avoidance of pro se/pro per.

wiedergeboren
07-08-2011, 9:19 PM
I was contacted by a calguns account Djandj, owned by David Salvin esq ... is this guy decent?
the fact he has a calguns account could be very good or very bad ... forgive my cynicism.

hoffmang
07-08-2011, 9:36 PM
I was contacted by a calguns account Djandj, owned by David Salvin esq ... is this guy decent?
the fact he has a calguns account could be very good or very bad ... forgive my cynicism.

I believe I've spoken to him. He's younger and less specialized but there is no reason to believe he couldn't do the job much better than you would pro-se.

-Gene

wiedergeboren
07-08-2011, 11:36 PM
I believe I've spoken to him. He's younger and less specialized but there is no reason to believe he couldn't do the job much better than you would pro-se.

-Gene
cool, then I'll look forward to the State of Kalifornia's recognition of my gun rights and my ability to sleep at peace at night, without worrying about the other side of the door ... though for now, I will just worry about him calling me back for that free consultation.