Tooby's California Post-Conviction Relief for Immigrants

 

After unsuccessful efforts to vacate a state conviction have exhausted all state court remedies, usually by filing an unsuccessful petition for review in the California Supreme Court, it is possible to file a petition for a writ of habeas corpus in federal court to attack the state conviction on the grounds of denial of the federal constitutional rights as to which state remedies have been exhausted.

 

            While a complete discussion of federal habeas corpus is beyond the scope of this work,[148] state post-conviction counsel must understand the restrictions imposed under the Anti-Terrorism Act of 1996 (AEDPA), [149] including the new one-year statute of limitations.  The AEDPA applies only to the filing of a habeas corpus petition in United States District Court, and has no application to state habeas corpus proceedings.

 

            The AEDPA greatly restricts federal habeas as a means of challenging federal or state convictions.[150]  It creates a new one-year statute of limitations,[151] provides a petition may be denied even though it contains an unexhausted claim, provides that the state shall not be deemed to have waived the exhaustion requirement except expressly through counsel,[152] and provides that the certificate of appealability necessary to appeal a district court’s denial of habeas relief must identify the specific issue(s) to be appealed.[153]

 

            AEDPA also restricts a federal court from granting an evidentiary habeas hearing under certain circumstances.[154]  It also imposes new limits on second or successive applications for federal habeas relief attacking state convictions.[155]

 

            AEDPA makes some parallel restrictions on federal habeas challenges to federal convictions under 28 U.S.C. § 2255.  It adds a requirement of obtaining a certificate of appealability before a district court denial of habeas can be appealed to the court of appeals.[156]  It creates a one-year statute of limitations from the date the judgment of conviction becomes final within which the federal motion must be filed.[157]  It greatly limits second or successive applications for the same or new claims.[158]  It extends the provisions for appointment of counsel under 18 U.S.C. § 3006A to federal habeas cases[159] and limits in camera applications for expert and investigation services by allowing discretionary denial.[160] 

 

            The following discussion provides information on relief commonly available through habeas corpus to immigrants in state court.  More in‑depth information, and information on other topics relating to habeas corpus, is available through numerous reference works.[161] 

 

          Exhaustion.     A state prisoner must exhaust all available state court remedies on direct appeal or through collateral proceedings before a federal court may consider constitutional claims for habeas corpus relief.[162]  Exhaustion requires that habeas petitioners 'fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and to correct alleged violations of its prisoners' federal rights.'"[163]

 

            Normally, this requirement has meant that all federal constitutional grounds for relief must be presented to the state’s highest court,[164] and the Ninth Circuit has clarified that that a habeas petitioner must indicate to the state's highest court the specifically federal nature of a claim in order to exhaust it.  That same court held, however, that claims of ineffective assistance of counsel were properly presented to the state’s highest court by argument in the lower court petition, which the state appellate court presumably considered.[165] 

 

            Proper Respondent.  The Attorney General is the proper Respondent in a federal habeas action filed pursuant to 28 U.S.C. § 2241, where the petitioner was transferred to DHS custody outside of the district court’s jurisdiction, where the questions could be decided on a paper record and did not require the physical presence of the petitioner.[166]

[148] See generally J. Liebman, Federal Habeas Corpus Practice and Procedure (The Michie Co. 1988); C.E.B., Appeals and Writs in Criminal Cases (2d ed. 2008), Chapter 4; C.E.B., California Criminal Law: Procedure and Practice (5th ed. 2008), Chapter 43; California Criminal Defense Practice (2008) § 102.11.

[149] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (hereinafter AEDPA).

[150] See AEDPA § § 101-108.

[151] 28 U.S.C. § 2244(d)(1), as amended by AEDPA § 101.

[152] 28 U.S.C. § 2254(b)(3), as amended by AEDPA § 104.

[153] 28 U.S.C. § 2253(c)(1)(B), (C), (D); F.R.A.P. 22(b), as amended by AEDPA § 103.

[154] To grant a hearing, the district court must find the petitioner relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and establishes “by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”  28 U.S.C. § 2254(e), as amended by AEDPA § 104(4).

[155] 28 U.S.C. § 2244(b), as amended by AEDPA § 106(b).

[156] 28 U.S.C. § 2253(c)(1)(B)-(D), as amended by AEDPA § 102.

[157] This is usually 90 days after the date the decision of the United States Court of Appeals is rendered, when a petition for writ of certiorari would be due in the U.S. Supreme Court, giving in essence 15 months from the decision of the Court of Appeals within which to file the federal habeas petition in United States District Court.

[158] 28 U.S.C. § § 2244(a), 2255 as amended by AEDPA § 106(a).

[159] 28 U.S.C. § 2255, as amended by AEDPA § 105(2).

[160] 21 U.S.C. § 848(q)(9), as amended by AEDPA § 108.

[161] For further outlines and articles on law and procedure of writs of habeas corpus see Bibliography, infra; Erwin, Millman, Monroe, Sevilla, Tarlow, California Criminal Defense Practice (Matthew Bender 2008) at § 102.10; C.E.B., Appeals and Writs in Criminal Cases § § 2.105‑2.120 (2d ed. 2008); J. Smith, et al., California State Prisoner's Handbook, pp. 348 ff. (2d Ed. 1990).  See also State Bar of California and Prison Law Project, Manual for Use of Habeas Corpus by California Prisoners (July 1987), available from State Bar of California, 555 Franklin Street, San Francisco, CA 94102.  See In re Duvall (1995) 9 Cal.App.4th 464, 37 Cal.Rptr.2d 259 [prosecution relieved from pleading detailed facts in return if evidence is not readily available].

[162] See Keeney v. Tamayo-Reyes, 504 U.S. 1, 9, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).

[163] Lyons v. Crawford, 232 F.3d 666, 668 (2000), as modified by 247 F.3d 904 (9th Cir.2001) (quoting Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995)).

[164] O'Sullivan v. Boerckel, 526 U.S. 838, 848-49, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

[165] Reese v. Baldwin, 282 F.3d 1184 (9th Cir. 2002).

[166] Chavez-Rivas v. Olsen, 207 F. Supp.2d 326 (D.N.J. 2002).