Tooby's California Post-Conviction Relief for Immigrants

Chapter

§3.1 I. Introduction and Overview
§3.2 II. A Triage Guide to Post-Conviction Cases
§3.3 A. The Current Status of the Client
§3.4 1. The Client Is Clean and Sober
§3.5 2. The Client Has Strong Equities
§3.6 3. The Client Has Served the Time and Is Currently Out of Custody
§3.7 4. The Client Has No Outstanding or Potential Arrest Warrants
§3.8 5. The Client Has No Current Aggravated Re-entry Exposure
§3.9 6. The Client Is Lawfully Present in the United States
§3.10 B. The Criminal Situation
§3.11 1. A Small Criminal Case Has Large Immigration Effects
§3.12 2. The Client Has 1 or Few Damaging Convictions
§3.13 3. Number and Diversity of Original Charges
§3.14 4. The Evidence of Guilt Is Weak, or the Client Has a Plausible Claim of (Partial) Innocence
§3.15 5. The Client Was Charged Jointly With 1 or More Codefendants
§3.16 6. A Relatively Minor Change in Conviction or Sentence Will Solve the Immigration Problem
§3.17 7. There Is Small Risk the Client Will Receive Additional Time in Custody if the Case Is Reopened and the Client Is Reconvicted
§3.18 a. Adverse Criminal Consequences
§3.19 b. Adverse Immigration Consequences
§3.20 8. The Jurisdiction Where the Conviction Occurred Is Relatively Sympathetic
§3.21 9. Incomplete Initial Defense Investigation
§3.22 10. Technical Problems with Prosecution Case
§3.23 C. The Timing of the Case
§3.24 1. Federal Time Limits
§3.25 a. Motion to Vacate Sentence Under 2255
§3.26 b. Coram Nobis Time Limits
§3.27 c. Attacking State Convictions
§3.28 2. California Time Limits
§3.29 a. Habeas Corpus and Nonstatutory Constitutional Motion to Vacate
§3.30 b. Coram Nobis
§3.31 c. Motion to Vacate Conviction for Violation of Penal Code §x1016.5
§3.32 d. Expungement Pursuant to Penal Code 1203.4(a)
§3.33 e. Motion to Reduce Felony to Misdemeanor
§3.34 3. The Client Has 6 Months or More Before Irrevocable Immigration Damage Occurs
§3.35 4. There Is Still Time To Reopen the Immigration Case if Criminal Convictions Are Eliminated
§3.36 5. The Records Necessary To Establish Error in the Criminal Case Still Exist

§ 3.31 c. Motion to Vacate Conviction for Violation of Penal Code §x1016.5

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In People v. Superior Court (Zamudio), [29] the California Supreme Court held that a motion to vacate the conviction for a violation of Penal Code § 1016.5 has no specific time limit, but may be barred by the doctrine of laches, which the government bears the burden to prove. The Court found that a § 1016.5 motion is timely “if brought within a reasonable time after the conviction actually “may have” such [immigration] consequences.”[30]

[29] People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 204.

[30] Ibid.