Coram Nobis Is Unavailable to Re-Litigate a Mens Rea Indictment Challenge Already “Passed Upon” in Prior § 2255 Proceedings, Even After Counterman

Case: Mr. Mark Richard Hillstrom v. United States
Court: U.S. Court of Appeals for the Eleventh Circuit (Non-Publication)
Date: 2026-06-16
Disposition: Affirmed denial of writ of error coram nobis

1. Introduction

This appeal concerns the narrow availability of the extraordinary common-law remedy of error coram nobis for a defendant who has completed his sentence and is no longer “in custody.” Mark Richard Hillstrom sought to vacate his federal conviction for transmitting in interstate commerce a communication containing a threat to injure another person (a prosecution implicating the mens rea requirements discussed in Elonis v. United States and later constitutionalized for “true threats” doctrine in Counterman v. Colorado).

Hillstrom’s core theory was jurisdictional in character: because the indictment allegedly failed to allege the constitutionally required subjective mental state (as he read Counterman), it did not charge a crime; therefore, the district court lacked jurisdiction to convict him, and his guilty plea should not foreclose relief. The central issue on appeal was procedural and preclusive: whether coram nobis can be used to raise (or repackage) a claim that was already litigated and rejected during Hillstrom’s prior 28 U.S.C. § 2255 proceedings.

2. Summary of the Opinion

The Eleventh Circuit affirmed. Applying abuse-of-discretion review, the court held that coram nobis relief was unavailable because the asserted error had already been “passed upon” in Hillstrom’s earlier § 2255 litigation. The court rejected Hillstrom’s attempt to differentiate an earlier Elonis-based mens rea challenge from a later Counterman-based challenge, concluding both were substantively the same claim: that the indictment failed to charge criminal conduct due to an inadequate allegation of subjective mens rea.

The panel further reasoned that Counterman did not supply a materially new basis to reopen the issue because it “reconfirmed” the sufficiency of the subjective mens rea framework identified in Elonis (with Counterman clarifying that recklessness suffices under the First Amendment for true-threat prosecutions).

3. Analysis

A. Precedents Cited

• Ramdeo v. United States, 136 F.4th 1348 (11th Cir. 2025)
  Role: Provided (1) the abuse-of-discretion standard and (2) the governing coram nobis criteria, including the requirement that the fundamental error not have been previously “put in issue or passed upon.” The court treated this “passed upon” element as dispositive.
• United States v. Harding, 104 F.4th 1291 (11th Cir. 2024)
  Role: Supplied the articulation of what constitutes an abuse of discretion (errant legal conclusion, clearly erroneous factfinding, improper application of law to fact), reinforcing the deferential posture on appeal.
• United States v. Hall, 714 F.3d 1270 (11th Cir. 2013) and United States v. Chitwood, 676 F.3d 971 (11th Cir. 2012)
  Role: Confirmed the appellate court’s authority to “affirm for any reason supported by the record,” underscoring that affirmance could rest on threshold procedural grounds without reaching merits.
• Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34 (1985)
  Role: Framed the All Writs Act as a “residual source of authority,” supporting the principle that coram nobis exists as an extraordinary gap-filler when no statute directly supplies relief.
• United States v. Holt, 417 F.3d 1172 (11th Cir. 2005)
  Role: Recognized the courts’ power under the All Writs Act to recognize common-law postconviction remedies, placing coram nobis within that recognized toolkit.
• United States v. Mills, 221 F.3d 1201 (11th Cir. 2000) and Alikhani v. United States, 200 F.3d 732 (11th Cir. 2000)
  Role: Emphasized that coram nobis is an “extraordinary remedy of last resort” with a “high” bar, and supplied the traditional criteria (including the “passed upon” limitation later quoted through Ramdeo).
• United States v. Peter, 310 F.3d 709 (11th Cir. 2002)
  Role: Served as the paradigmatic example of when coram nobis can be appropriate: an intervening Supreme Court decision establishes that the very conduct of conviction was not criminal under the statute. The panel implicitly contrasted Hillstrom’s situation with Peter, concluding Counterman did not newly decriminalize Hillstrom’s conduct or newly invalidate the legal theory already rejected in his § 2255 case.
• Elonis v. United States, 575 U.S. 723 (2015)
  Role: Identified the importance of mental state in threat prosecutions and rejected a purely objective “reasonable person” standard for § 875(c), explaining that liability is satisfied if the defendant transmits a communication “with knowledge that the communication will be viewed as a threat” (while leaving open whether recklessness suffices as a matter of statutory interpretation).
• Counterman v. Colorado, 600 U.S. 66 (2023)
  Role: Addressed the First Amendment requirement of a subjective mental state for true threats and held recklessness is sufficient. The panel used Counterman not as a change that reopened Hillstrom’s case, but as a decision that “reconfirmed” the adequacy of the subjective approach underlying the prior rejection of Hillstrom’s Elonis-framed claim.
• Voisine v. United States, 579 U.S. 686 (2016) and United States v. Bailey, 444 U.S. 394 (1980)
  Role: Provided definitional anchors for culpable mental states: Voisine for recklessness (“consciously disregards” a substantial risk) and Bailey for knowledge (“practically certain” result). The panel used these to describe the hierarchy of mental states discussed in Counterman.

B. Legal Reasoning

The court’s reasoning proceeds in three steps:

1. Coram nobis is exceptional and limited.
   Invoking the All Writs Act framework and Eleventh Circuit coram nobis doctrine (as synthesized in Ramdeo, quoting Mills and Alikhani), the panel emphasized that relief is unavailable if the alleged fundamental error has already been “put in issue or passed upon.”
2. Hillstrom’s “new” claim was substantively the same as the old one.
   The panel characterized both the earlier § 2255 claim and the later coram nobis claim as the same legal contention: the indictment allegedly failed to charge a crime because it did not allege a sufficient subjective mens rea for threat liability. The court rejected Hillstrom’s attempt to distinguish the claims by labeling one “under Elonis” and the other “under Counterman,” treating that as a change in citation rather than a change in claim.
3. Counterman did not create the kind of intervening change that warrants coram nobis.
   The panel read Counterman as clarifying that recklessness satisfies the First Amendment and as aligning with the subjective mens rea approach already implicated in Elonis. In the panel’s framing, because the earlier § 2255 proceedings had already rejected the “indictment fails to charge a crime” theory—and because Counterman “reconfirmed” rather than repudiated the relevant mens rea sufficiency—the matter had already been “passed upon,” foreclosing coram nobis.

Notably, the court resolved the case on the coram nobis “passed upon” limitation rather than undertaking a merits analysis of indictment sufficiency post-Counterman or addressing Hillstrom’s jurisdiction and guilty-plea arguments in depth. The procedural bar did the work.

C. Impact

Although unpublished, the decision reflects (and reinforces) several practical rules likely to shape future litigation strategy in the Eleventh Circuit:

• Coram nobis cannot function as a second collateral-review track for claims already litigated. Petitioners who previously raised (and lost) a claim in § 2255 should expect coram nobis to be denied where the “new” petition merely reframes the same fundamental contention, even if supported by a later Supreme Court decision that clarifies doctrine.
• Intervening Supreme Court authority must materially change the legal landscape to resemble United States v. Peter. The opinion signals that coram nobis is most viable when a later decision shows the petitioner’s conduct was not criminal (or the legal theory of conviction is invalid) in a way not previously adjudicated—not when the later decision is treated as consistent with the earlier framework.
• Counterman will not automatically reopen threat convictions litigated through Elonis-style arguments. The court treated Counterman as broadly compatible with the subjective mens rea approach discussed in Elonis, reducing the likelihood that Counterman alone will supply an “extraordinary” basis for post-sentence relief where similar mens rea claims were previously considered.

4. Complex Concepts Simplified

• Writ of error coram nobis: A rare postconviction remedy that can vacate a conviction after the sentence is served (when § 2255 is unavailable due to lack of custody). It is reserved for exceptional cases and is not meant to duplicate ordinary collateral review.
• All Writs Act (28 U.S.C. § 1651(a)): A statute allowing federal courts to issue necessary writs in aid of their jurisdiction—used as a “residual” authority to recognize certain common-law remedies like coram nobis.
• “Passed upon” requirement: Coram nobis generally requires that the fundamental error was not already litigated or decided. If a court already ruled on the same essential claim, coram nobis is typically barred.
• Mens rea: The required mental state for a crime. In threat cases, the key question is whether liability depends only on how a reasonable person would perceive the statement (objective) or also on what the speaker understood or risked (subjective).
• Recklessness vs. knowledge (as discussed through Counterman): Recklessness means consciously disregarding a substantial risk that others will take the statement as a threat; knowledge is a higher standard—awareness to a practical certainty that others will perceive it as a threat.

5. Conclusion

The Eleventh Circuit’s decision establishes a clear procedural takeaway: a petitioner cannot use coram nobis to re-litigate an indictment-based mens rea challenge that was already adjudicated in prior § 2255 proceedings, even when repackaged under Counterman v. Colorado. By treating the Counterman-invoked argument as substantively identical to the earlier Elonis-invoked argument—and by emphasizing the “passed upon” limitation—the court reinforced coram nobis as a tightly confined remedy aimed at truly extraordinary, previously unadjudicated fundamental errors.