Tooby's California Post-Conviction Relief for Immigrants

We need to give our clients an accurate idea of the costs and chances of successfully obtaining post-conviction relief.  We need to avoid false hope.  Sometimes the greatest service we can offer is to tell the client it is hopeless and save the expenses and agonies of a doomed effort to vacate a criminal conviction.  Sometimes, the fruits of victory are so important to the client that s/he is willing to spend a great deal of time and money in an effort to clear away a prior criminal conviction or sentence, even if there is only a small chance of success.

            An accountant friend of mine put it this way.  Suppose the client can earn an average of $30,000 per year here in the United States and only $3,000 per year if deported to Mexico.  If the client has 37 years remaining in his or her working life, the difference in earnings is $1 million.  That ignores compounding the income, salary increases, and the intangible benefits of avoiding destruction of the family, severing relationships with friends, family, and all that the client loves about living in the United States.  Since staying here is a benefit worth $1 million, some clients feel it is worth trying to vacate a conviction even if there is only a five percent chance of succeeding.

            On the other hand, if the effort is doomed, the cost of attempting to vacate the conviction represents real wealth in the native land; it may be enough to purchase a business and to survive for several years at least, even if the client initially has no income after deportation.

            The factors covered in this chapter can generally be used to assess the chance of obtaining post-conviction relief at an early point and help determine whether the chances are great enough to justify the time and expense of obtaining a detailed analysis of the criminal records by a criminal law or post-conviction expert.

            The issues are often not black-and-white.  Cases can range anywhere on a spectrum for each factor.  Obviously, if a case is at the favorable end of the spectrum for each factor, it is a very promising case indeed.  Conversely, even one important negative factor can be sufficient to mark a case as hopeless.  For example, if the client has ten different deportable convictions each entered in a different plea proceeding, the case is probably hopeless regardless of other factors.

            The listed factors are not exclusive.  They have been selected because of their importance and because it is often possible for counsel to determine whether they exist even before conducting an extensive review of the case.  After examining each factor and noting its presence, absence, and degree, it is useful to place this information on one page to take an overall look at the case.  For easy reference, a Post-Conviction Case Evaluation Checklist is included as Appendix C, infra.