Post-conviction counsel has four tasks:  (1) Make a list of all criminal convictions and sentences suffered by the client, in all jurisdictions; (2) determine which of them (singly or in combination) trigger adverse immigration consequences, and what exactly those consequences are; (3) for each conviction, or combination of convictions, that produces an adverse effect, determine what alteration in the criminal conviction or sentence is necessary to produce an immigration result that can be tolerated; and (4) investigate each conviction to determine whether the necessary result can be achieved by means of post-conviction relief.

 

            There are two basic avenues for achieving post‑conviction relief:

 

            (1)  An attack on the validity of the conviction, if successful, results in vacating the conviction.  The client is then in the same position s/he occupied immediately prior to the plea or verdict of guilty, and needs to mount an effective defense to the charges a second time.  Vacation of judgment eliminates all immigration effects of all convictions,[1] including convictions of drug offenses.

 

            (2)  Various state rehabilitative procedures, such as expungements, that accept the validity of the conviction, but seek to alter it to remove some or all of the adverse collateral consequences of the conviction.  Convictions that were eliminated under state rehabilitative statutes such as Penal Code § 1203.4 without any claim of legal invalidity will generally continue to exist for immigration purposes.  See § 10.3, infra.  These procedures are discussed in Chapter 10, infra.  Now, however, expungements under Penal Code § 1203.4, Prop. 36, and Deferred Entry of Judgment eliminate the immigration consequences only for first-offense minor drug offenses, and only in the Ninth Circuit. 

 

            The results of successful post‑conviction relief can include vacating the conviction, acquittal, dismissal, diversion, expungement, reduction from felony to misdemeanor or from misdemeanor to infraction, delay in conviction until a certain time period expires, etc.  A more thorough description of the variety of different forms of post‑conviction relief is provided elsewhere in the chapter.[2]

[1] Remember that the act of committing some offenses (such as prostitution, alcohol and drug offenses) may have adverse immigration effects even if no conviction results in the criminal case.  See Criminal Defense Of Immigrants § 17.23, for a list and description of conduct-based grounds of deportation and § 18.16 for a list of conduct-based grounds of inadmissibility.

[2] See § § 5.10, et seq.

Ninth Circuit

POST CON RELIEF " PROCEDURE " RIGHT TO COUNSEL " NO RIGHT TO COUNSEL ON PETITION FOR POST-CONVICTION RELIEF
Martinez v. Schriro, 623 F.3d 731 (9th Cir. Sept. 27, 2010) (there is no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constituted the first tier of review for an ineffective assistance of counsel claim), petition for certiorari granted, Martinez v. Ryan, 131 S.Ct. 2960 (Jun. 6, 2011)).