Lead Opinion
[¶ 1.] In this аppeal, we must decide if the common law writ of coram nobis is available to review issues which were examined or could have been examined in a petitioner’s earlier post-conviction proceedings. After state and federal habeas applications had been resolved against him, petitioner sought a writ of error coram nobis. Largely, he
Facts
[¶2.] Garland Ray Gregory was charged with murder and conspiracy to cоmmit murder in connection with the November 1,1979, shotgun slaying of Michael Young. On November 6, 1979, Gregory, accompanied by counsel, appeared before a law-trained magistrate and was advised of the charges, the possible penalties, and the applicable constitutional and statutory rights. Gregory was bound over for trial on both charges after a preliminary hearing. He was later charged by information and appeared for an arraignment on December 12,1979.
[¶ 3.] At the arraignment, the trial court gave Gregory a form outlining his statutory and constitutional rights. It informed him that (1) he was charged with the offense of conspiracy to commit murder and murder arising out of the death of Michael Young; (2) the maximum penalty for conspiracy to commit murder was life imprisonment; and (3) the penalty for murder was death or life imprisonment. Gregory told the court that he understood everything contained in thе form. He pled not guilty.
[¶ 4.] After a codefendant decided to plead guilty, Gregory made a plea agreement with the State, and appeared before the circuit court for a change of plea hearing on March 13, 1980. The court canvassed Gregory regarding his understanding of his constitutional rights, the effect of a plea of guilty on those rights, whether his plea was voluntary, and whether he had been threatened, coerced, or otherwise improperly influenced. Gregory stated that his plea agreement was free and voluntary. The court, after a review of the entire file, including the code-fendant’s proceedings, concluded there was a sufficient factual basis to support Gregory’s guilty plea to conspiracy to commit murder. He was sentenced-to life imprisonment.
[¶ 5.] Gregory petitioned for post-conviction relief pursuant to SDCL ch 23A-34 on January 27, 1981. The circuit court denied the petition and Gregory appealed. We held that the trial court had a sufficient factual basis to accept Gregory’s guilty plea, and that the court properly took judicial notice of the file for purposes of establishing a factual basis. Gregory v. State,
[¶ 6.] On remand, the court, without taking additional testimony or argument, entered specific findings and conclusions, ruling that Gregory had been informed of and understood the nature of the charges against him, the consequences of his plea, and that his plea had been a voluntary and intelligent choice among the alternatives open to him. From this decision, Gregory again appealed. We affirmed, holding that the existing record, when viewed in the totality of the circumstances, fairly supported the court’s findings and conclusions. Gregory v. State,
[¶ 7.] Gregory then filed a habeas corpus petition in the United States District Court, alleging essentially the same issues he had raised in his state court post-conviction proceedings. The district court dismissed the petition, from which Gregory appealed to the Eighth Circuit Court of Appeals. ■ In affirming, the Eighth Circuit, after setting forth a detailed summary of facts, rejected Gregory’s assertion that his guilty plea was involuntary because he was not informed of the elements of the conspiracy to commit murder charge. Gregory v. Solem,
[¶ 8.] Gregory brought another state habe-as attack on his conviction on November 25, 1986. He alleged that (a) his plea was not knowing, voluntary, and intelligent as he was not aware of all the elements of the offense to which he pled guilty; (b) his plea was not knowing, voluntary, and intelligent because he believed he could obtain parole from a life sentence; and (c) his attorney’s representation was ineffective for failing to explain to him the nature of the offense charged against him, and for fostering his belief that he could be paroled from a life sentence.
[¶ 9.] The circuit court dismissed the application pursuant to SDCL 21-27-16.1, and Gregory appealed. We reversed and remanded, holding that Gregory should have been allowed to introduce evidence bearing on the issues raised in the amended application. Gregory v. Soleto,
[¶ 10.] We held the circuit court erred in not granting the State’s motion to dismiss because Gregory could not meet the cause and prejudice standard in failing to bring the issues in the current habeas action in the prior post-conviction proceedings. Gregory v. Solem,
[¶ 11.] On September 28, 1994, Gregory filed a pro se application for writ of error coram nobis. On appointment of counsel, an amended application was filed, which contained eight separate points to support issuance of the writ:
(1) That the information regarding the conspiracy to commit murder charge was insufficient since it did not define the elements of conspiracy and thereby deprived the criminal trial court of jurisdiction;
(2) That the criminal trial court erred in taking judicial notice of the records in the file for establishing a factual basis for Gregory’s guilty plea;
(3) That state and federal reviewing courts erred in nоt reversing Gregory’s conviction for the criminal trial court’s failure to inform Gregory of the specific elements of the offense of conspiracy to commit murder and obtaining Gregory’s specific understanding of that charge prior to accepting his guilty plea;
(4) That the reviewing courts unconstitutionally applied a different standard of compliance in reviewing Gregory’s claimed violation of SDCL ch. 23A-7;
(5) That Gregory’s post-conviction counsel rendered ineffective assistance of counsel for failing to previously raise the improper taking of judicial notice of the preliminary hearing transcript for finding a factual basis for the plea;
(6) That Gregory’s criminal trial counsel rendered ineffective assistance of counsel for allegedly coercing Gregory to plead guilty, maneuvering Gregory from testifying at the change of plea hearing; and persuаding Gregory to recite a version of occurrences given by á codefendant, but reversing the blame;
(7) That the South Dakota Supreme Court erred in applying SDCL 21-27-16.1 as a procedural bar to Gregory’s prior habeas corpus proceedings; and
(8) That it was cruel and unusual punishment to sentence Gregory to life imprisonment without the possibility of parole.
[¶ 12.] Both Gregory and the State moved for summary judgment. However, the circuit court determined that before reaching
[¶ 13.] Gregory appeals on the following issues: (a) “Whether the trial court committed reversible error by dismissing his amended application for writ of error coram nobis?” (b) “Whether the trial court committed reversible error for failing to grant his motion for summary judgment?” (c) “Whether the trial court committed reversible error by denying his motion for new trial?” In view of our affirmance on the first issue, we need not address the other two.
Analysis and Decision
1. The Nature of Coram Nobis
[¶ 14.] The common law writ of quae coram nobis resident, “let the record remain before us,” originated in the Sixteenth Century, thrived in both English and American jurisprudence, languished for a time in the federal courts, and revived with the Supreme Court’s breakthrough decision in 1954. United States n Morgan,
[¶ 15.] The writ “takes cognizance of new evidence only if it was discovered aftеr entry of the judgment and could not have been discovered and produced during the period when a statutory remedy was available.” Morgan Priekett, The Writ of Error Coram Nobis in California, 30 Santa-ClaraL.Rev. 1, 17-18 (1990). Any factual errors which have been, “could have been, or should have been reviewed” with another available remedy cannot be examined in co-ram nobis. Id. at 16; see also Petition of Brockmueller,
[¶ 16.] To note the availability of coram nobis in South Dakota, in Brockmueller,
[¶ 17.] We continue to adhere more closely to the writ’s original ambit:
[Jurisdiction of a court to grant relief under [coram nobis] is of limited scope. Any proceeding which is challenged by the writ is presumed to be correct and the burden rests on its assailant to show otherwise. ... Relief will be granted only when circumstances compel such actiоn “to achieve justice.”
Davis,
[¶ 18.] In summary, coram nobis is limited to reviewing a criminal conviction respecting some error in fact (or fundamental jurisdictional error), as opposed to an ordinary eiTor in law, that without the fault of the рetitioner was unknown at the time of the questioned proceedings, or unrevealed because of fraud or coercion, without which the judgment would not have been entered, and for which there is no other available remedy. Id. at 137; State v. Cottingham,
2. Gregory’s Coram Nobis Petition
[¶ 20.] After the circuit court considered the prior state and federal proceedings in this matter, all of which were necessarily part of the record, the court dismissed Gregory’s claim, reasoning that he was unable to show that other statutory remedies had been inadequate or unavailable. Further, the court declared that this was not the rare case in which coram nobis relief should be used to correct an injustice. In coram nobis proceedings summary denial is appropriate if a petitioner’s allegations are inadequate to invoke the court’s jurisdiction. See People v. Reid,
[¶ 21.] Gregory’s first claim of error, regarding a defective information charging conspiracy to commit murder, was not brought up in prior proceedings. Even if we agreed for argument’s sake that this was a jurisdictional error, we do not believe it was fundamental. Errors in indictments and in-formations are ordinarily inadequate to merit relief under coram nobis. Paxton v. State,
[¶ 22.] Gregory next claims in points two and five that the criminal trial court erred in taking judicial notice of the records in the file to establish a factual basis for his plea, and that his post-conviction attorney rendered ineffective assistance in failing to raise the issue before. In Gregory I,
[¶ 23.] Points three and four assert that the state and federal reviewing courts erred in ruling against Gregory. See Gregory II,
[¶ 25.] Gregory maintains in point seven that we erred in applying SDCL 21-27-16.1 in Gregory V This statute provides that:
All grounds for relief available to a petitioner under this chapter shall be raised in his original, supplemental or amended application. Any ground not raised, finally adjudicated or knowingly and understandingly waived in the proceedings resulting in his conviction or sentence or in any other proceeding that the applicant has taken to secure relief from his conviction, or sentence, may not be the basis for a subsequent application, unless- the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original, supplemental or amended application. ■
In Gregory V, we adopted the “cause and prejudice” test set forth by the United States Supreme Court in Wainwright v. Sykes,
[T]he existence of cause for a procedural default must ordinarily turn on whеther the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.
Id. (emphasis added). From our independent review of the record, it is clear that Gregory presented no reasonable cause for failing to raise ineffective assistance of counsel in his original post-conviction proceeding. Moreover, ineffective assistance claims are not usually cognizable in eoram nobis proceedings. People v. Soriano,
[¶ 26.] Finally, Gregory maintains in point eight that it was cruel and unusual to sentence him to life imprisonment without possibility of parole. We do not believe co-ram nobis covers issues of cruel and unusual punishment. Moreover, the question is now being raised for the first time when it could have been heard in earlier proceedings.
[¶ 27.] Affirmed.
Notes
. The special concurrence оf Justice Sabers adheres to the broad language of Brockmuetler, which by implication might incorporate § 2255 and confuse our rules for habeas corpus relief. It must be noted that in Brockmuetler the Court merely repeated the language of United States v. Morgan without attempting to describe coram nobis under state law. See Robert R. Nelson, Coram Nobis as a Post Conviction Remedy: Flight of the Phoenix?, 32 S.D.L.Rev. 300 (1987)(criti-cizing Brockmuetler as ambiguous because it failed to "expressly determine the character of the writ” or "identify or discuss the prerequisite grounds for the writ's application.” Id. at 321. Although the article advocates that South Dakota аdopt federal standards for the writ, it nonetheless contends that “expansive application and abuse of the writ is a very real possibility unless Brockmuetler is limited or overruled.”). Recently, even the United States Supreme Court seems to have taken a step back from Morgan's broad language. In Carlisle v. United States,
[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.
Id.
. One commentator noted:
"Petitions based upon fundamental jurisdictional defects may be heard and granted, notwithstanding the fact that the judgment was affirmed on appeal or has otherwise become final. Exempted from the usual requirement that proof of errors of fact must be extrinsic to the record, a jurisdictional defect, such as the barring of an action by the statute of limitations, may be asserted even if the error appears on the face of the record. Similarly, lack of jurisdiction may be recognized in co-ram nobis even if the defect was known at the time of trial.” Prickett, supra, at 31-32 (footnotes omitted).
Concurrence Opinion
(concurring specially).
[¶ 31.] I fully agree that we should affirm the circuit court’s dismissal.
[1132.] I write speciаlly to note that the majority opinion seems to unduly narrow the circumstances under which eoram nobis is the appropriate remedy. This is contrary to the letter and spirit of coram nobis as expressed by Justice Wollman in In re Brockmueller,
Generally, this extraordinary writ is only available to attack convictions involving collateral legal disadvantages which survive the satisfaction of a sentence.
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The state further argues that coram nobis is inapрlicable in this case as the writ is available to redress only errors of fact and not of law. We hold, however, that coram nobis encompasses legal errors of constitutional significance such as jurisdictional defects ....
The error presented in this case is of the fundamental nature contemplated by co-ram nobis. To allow a felony conviction to stand when it is based upon void convictions would be an injustice of the first magnitude.
(Wollman, J., delivering the majority opinion) (citations omitted); accord State v. Davis,