Any plausible claim of innocence or weakness in the prosecution evidence forms a powerful factor that increases the likelihood of obtaining post-conviction relief.  For example, if the client possessed a small quantity of drugs, yet was convicted of possession for sale, the case may have been triable on the defense that s/he possessed the drugs for personal use.  In one such case, the client was charged with attempted murder and pleaded to assault with a firearm, yet had merely shot the gun into the air.  He was in fact innocent of both charges.  Any plausible claim of innocence lends substance to the client’s claim that if s/he had been correctly informed about the immigration consequences of the plea, s/he would have chosen to take the case to trial where s/he would have had some chance of winning.

 

            Even if the claim of innocence is only partial, it still bears significance.  In plea bargaining, the partial innocence may well have been worth enough to motivate the prosecutor to alter the charge to an immigration-harmless offense with the same sentence.

Fourth Circuit

POST CON RELIEF " FEDERAL " MOTION TO WITHDRAW GUILTY PLEA " GROUNDS " NEWLY DISCOVERED EVIDENCE OF INNOCENCE
United States v. Thompson-Riviere, 561 F.3d 345 (4th Cir. March 26, 2009)(vacating conviction for illegal reentry, where motion to withdraw guilty plea on the ground that newly discovered evidence showed that the defendant was a citizen had merit because he credibly asserted his legal innocence).

Ninth Circuit

POST CON " GROUNDS " INSUFFICIENT EVIDENCE " STANDARD OF REVIEW ON HABEAS CORPUS
Briceno v. Scribner, 555 F.3d 1069, 2009 WL 426303 (9th Cir. February 23, 2009)("To prevail on an insufficiency of evidence claim, a habeas petitioner must show that upon the record evidence adduced at the trial[,] no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). An additional layer of deference is added to this standard by 28 U.S.C. 2254(d), which obliges Briceno to demonstrate that the state court's adjudication entailed an unreasonable application of the quoted Jackson standard."), citing See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

Other

PETITION FOR FINDING OF FACTUAL INNOCENCE " REASONABLE CAUSE TO BELIEVE DEFENDANTS COMMITTED OFFENSE EXISTED DESPITE ACQUITTAL
People v. Medlin, 178 Cal.App.4th 1092, 100 Cal.Rptr.3d 810 (Oct. 29, 2009)(reversing order finding defendants-nurses factually innocent of felony charges of dependent adult abuse likely to produce great bodily harm or death and directing destruction of their records since evidence provided reasonable cause to believe that they committed the offense of which they were charged, despite their acquittal).

PETITION FOR FINDING OF FACTUAL INNOCENCE " STANDARD OF PROOF
People v. Bleich, 178 Cal.App.4th 292, 100 Cal.Rptr.3d 288 (Oct. 9, 2009)(affirming trial court's denial of petition for a finding of factual innocence following the dismissal of charges of terrorist threat and stalking, since defendant failed to sustain her burden to show that she is factually innocent of the charges brought against her such that she never should have been subjected to criminal process in the first place, even though prosecution failed in its burden to present evidence sufficient to bind defendant over for trial).

CAL POST CON " FACTUAL INNOCENCE " STANDARD OF PROOF CRIMINAL LAW & PROCEDURE, EVIDENCE
People v. Bleich, No. D053808 Trial court's denial of defendant's petition for a judicial finding of factual innocence following the dismissal of charges that she made a terrorist threat and stalked the victim is affirmed as, while the prosecution failed in its burden to present evidence sufficient to bind defendant over for trial, defendant failed to sustain her burden to show that she is factually innocent of the charges brought against her such that she never should have been subjected to criminal process in the first place