Post-Conviction Relief for Immigrants
§ 5.11 4. Adverse Criminal Consequences of Setting Aside Conviction
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If the client attacks a conviction and succeeds in setting it aside, in some cases there is a risk that the client may suffer greater criminal punishment if the client is convicted again. The client must be advised of this possibility, and that there are no guarantees that this outcome can be avoided.[18] See § 2.18, supra.
Generally, the client must be given full credit against any new sentence for the time s/he has actually already served in the matter.[19] As a practical matter, because of the law requiring credit for time served and because the case may be old, if the client has developed a good record in custody and otherwise since the original conviction, it is often extremely unlikely that the court would resentence the client to a greater punishment after reconviction. Counsel should, however, discuss the possibility with the client so the client is fully aware of this risk when deciding whether to go forward with an attack on the validity of the conviction. The client must make the ultimate decision whether the risk of harsher punishment upon reconviction, after initially obtaining post‑conviction relief, outweighs the immigration benefits sought.
CAVEAT: In this age of mandatory sentences, in some cases if the client is convicted after trial of greater offenses or enhancements, the law may require the court to impose greater punishment.
[18] Alabama v. Smith, 490 U.S. 794, 104 L.Ed.2d 865 (1989) (presumption of vindictiveness does not apply when greater sentence is imposed after trial than was imposed after prior guilty plea). If the original sentence was a legally “unauthorized” one (either too great or too small) and the client attacks the conviction, the improper sentence may be set aside at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence. United States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir. 1986); People v. Serrato, 9 Cal.3d 753, 764 (1973).
[19] E.g., California Penal Code § 2900.5.
