Tooby's California Post-Conviction Relief for Immigrants

Habeas corpus may be used only if the client is in custody, actual or constructive, resulting from the conviction.[206]  If there is no custody, the court lacks jurisdiction, and the habeas corpus action will be dismissed with prejudice.

Actual physical incarceration is not required; courts have also expanded the writ of habeas corpus to persons who are in constructive custody.[207]  “The thrust of these cases is that a person is in custody constructively if he [or she] may later lose his [or her] liberty and be eventually incarcerated.”[208]  Conditions constituting constructive custody include release on probation or parole, commitment under a civil narcotics addict program, outpatient status under an order of commitment to a state hospital,[209] and release on bail or own recognizance.  Habeas corpus is also available to those who may not currently be in custody, but who are “subject to restraints not shared by the public generally.”[210]

            The court has habeas jurisdiction if the client is in “custody” at the time the petition is filed, even if the client is later released from custody, as long as the client will still suffer damage from denial of habeas relief and the case is therefore not moot.[211]  Thus, if the client is on parole when the habeas corpus petition is filed, but is released from parole before the hearing, the superior court still has jurisdiction to adjudicate the cause of action so long as immigration consequences hinge on the outcome of the hearing.

            In the immigration context, a habeas petition is not subject to dismissal where the non-citizen was ordered deported after the petition was filed, so long as jurisdiction existed on the date the petition was filed.[212]  Where the non-citizen has already been removed from the United States prior to filing a federal habeas corpus petition, however, he was never in “custody” for jurisdictional purposes, unless s/he can demonstrate that the deportation order was executed in violation of the immigration judge’s order.[213]

            Parole is normally automatically terminated, and therefore, custody for habeas corpus purposes concluded, once five years have elapsed, unless the Parole Commission has made a decision to extend parole under the individual circumstances of the case.  When, however, an early termination decision has been requested and a determination is delayed beyond the five-year mark, parole does not terminate automatically with the expiration of the term.[214]   Under those circumstances, constructive custody for habeas purposes would continue to exist.

[206] Maleng v. Cook, 490 U.S. 488, 490-492 (1989); Mendez v. Superior Court (2001) 87 Cal.App.4th 791, as modified by 88 Cal.App.4th 238; Penal Code § 1473(a); In re Azurin (2001) 87 Cal.App.4th 20; In re Wessley W. (1981) 125 Cal.App.3d 240, 246-247.

[207] Jones v. Cunningham, 371 U.S. 236, 240 (1963). 

[208] In re Wessley W. (1981) 125 Cal.App.3d 240, 246, 177 Cal.Rptr. 243, 245 (person whose probation had terminated 15 years earlier was not in constructive custody).  See generally C.E.B., Appeals and Writs in Criminal Cases, § 2.94 (2d ed. 2008).

[209] See, e.g., People v. Haynes (1980), 104 Cal.App.3d 118, 123, fn. 1, 164 Cal.Rptr. 552; In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375 (probation); In re Sturm (1974) 11 Cal.3d 258, 265, 113 Cal.Rptr. 361 (parole); In re Bye (1974) 12 Cal.3d 96, 99, fn.2, 115 Cal.Rptr. 382, cert. den. 420 U.S.996 (1975) (narcotics program); In re Moye  (1978) 22 Cal.3d 457, 461, 149 Cal.Rptr. 491 (outpatient status).

[210] In re Catalano (1981) 29 Cal.3d 1, 8, 171 Cal.Rptr. 667, 672 (person was in sufficient constructive custody under an order to pay a $100 fine in 30 days because s/he could be jailed thereafter for failure to pay).

[211] See Sibron v. New York, 392 U.S. 40, 55-56 (1968).  See C.E.B., Appeals and Writs in Criminal Cases, § 2.96 (2d ed. 2008).

[212] Chong v. Quarantillo, 264 F.3d 378 (3d Cir. 2001).

[213] Miranda v. Reno, 238 F.3d 1156 (9th Cir. 2001).

[214] Benny v. U.S. Parole Commission, 295 F.3d 977 (9th Cir. 2002).