Tooby's California Post-Conviction Relief for Immigrants

A direct appeal is the most direct form of post‑conviction challenge to the validity of a criminal conviction.  It can take from one to two years to complete a direct appeal from a felony conviction, and from three to six months, occasionally more, to complete a misdemeanor appeal.

            During its pendency, a direct appeal prevents a conviction from being considered a final judgment of conviction, and thus it does not yet exist for immigration purposes.[105]  The BIA has recently decided that filing a late notice of appeal is ineffective to defeat the finality of a conviction, for purposes of beginning removal proceedings, even if the criminal court accepts it and begins a late appeal.  See § 6.21, infra.  A successful appeal can result in the complete vacating of the judgment of the trial court, and thus eliminate a conviction entirely for immigration purposes, even if the conviction is for a narcotics offense.

            The defendant may not argue on direct appeal that his guilty plea was not knowing or intelligent where the factual basis giving rise to the grounds to withdraw the guilty plea was known prior to entry of judgment, and the defendant failed to move to withdraw his plea in the trial court pursuant to Penal Code § 1018.[106]

[105] Matter of Ozkok, Int. Dec. 3044 (BIA 1988); Matter of Jadusingh, No. A29 847 544 (BIA 1998)(guilty plea conviction on appeal not sufficiently final to permit underlying facts to be used to establish inadmissibility for reason to believe noncitizen had been a drug trafficker).  An INS regulation provides that for a conviction to exist, all direct appeal rights must have been exhausted or waived, or the appeal period must have elapsed.  See 8 C.F.R. § 242(b) (defining conviction for purposes of the mandate to expeditiously deport convicted aliens, INA § 242(i), 8 USC § 1252(i)).  See also Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998)(en banc), separate opinion of Board Member Rosenberg concurring and dissenting, for a comprehensive discussion of the finality requirement.

[106] People v. Turner (2002) 118 Cal.Rptr.2d 99, 96 Cal.App.4th 1409.