Tooby's California Post-Conviction Relief for Immigrants

 

If the immigrant faces no further criminal penalty based on a conviction, but has been arrested by the DHS, taken into DHS custody, released on bond, and embroiled in deportation proceedings, arguably that DHS custody should be sufficient custody to confer jurisdiction in a habeas corpus proceeding.  Both state and federal courts, however, have rejected this proposition.

 

            The Ninth Circuit has held that federal habeas may not be used against the INS as custodian to challenge the constitutionality of a state conviction.[220]  The court cited Custis v. United States, which held that a criminal defendant cannot collaterally attack in federal sentencing proceedings the constitutionality of a prior conviction being used to enhance a second sentence.  The Ninth Circuit found that allowing a collateral attacking on the conviction that provided the underlying basis of the deportation proceedings was conceptually identical to the situation in Custis.  The Ninth Circuit held that while custody by the INS was a basis for habeas jurisdiction under 28 U.S.C. § 2241, petitioner’s continued detention by the INS was lawful based on the facial validity of the conviction.  Finally, the court noted that the validity of the conviction should be tested in state court, which has the greatest interest in preserving its judgment or correcting it.  It does not appear that any other federal circuit courts have addressed this question or followed Contreras.

 

            In People v. Villa, the California Supreme Court held that a person in federal immigration detention is ineligible for a writ of habeas corpus from a California court after the state sentence and probation or parole had already been completed.[221] 

 

            The court recognized that case law had expanded the writ’s application to people who are determined to be in constructive custody and noted that the writ was available to people on parole, probation, bail, and sentenced and released on recognizance pending hearing on the merits.[222]  In addition, the court observed that a sentence of a fine or imprisonment (in the alternative) similarly sufficed to meet the custody requirement for habeas corpus relief.

 

            However, the court held that "collateral consequences of a criminal conviction — even those that can later form the basis of a new criminal conviction — do not of themselves constitute constructive custody."[223]    

 

            The court explained:

 

            That Villa is being detained by a different sovereign is not necessarily dispositive for habeas corpus purposes. . . .  Thus, for example, in In re Shapiro (1975) 14 Cal.3d 711, we held that a state parolee subsequently arrested by federal authorities and detained in an out-of-state federal detention facility (McNeil Island in the State of Washington) could seek state habeas corpus relief when the state placed a detainer hold on him with federal officials.  (Id. at pp. 714-715.)  Although Shapiro (like Villa) was being held by a different sovereign in a different state, his petition did not seek to ameliorate the terms or conditions of his confinement in the federal penitentiary or to have federal officials respond to the allegations.  Rather, it was directed to the California Adult Authority (the precursor to the Board of Parole Hearings).  “It is the existence of the detainer initiated in California which is causing the petitioner deleterious consequences at McNeil Island, and petitioner correctly concludes that if the parole violator warrant is invalid the detainer itself will be removed.”  (Id. at p. 715.)

 

            The critical factor in determining whether a petitioner is in actual or constructive state custody, then, is not necessarily the name of the governmental entity signing the paycheck of the custodial officer in charge, or even if the petitioner is within the geographic boundaries of the State of California.  Instead, courts should realistically examine the nature of a petitioner’s custody to determine whether it is currently authorized in some way by the State of California.[224] 

                                               

            Because Villa’s detention was not authorized by state law but was instead, “directly traceable to applicable federal laws governing immigration,” Villa could not be considered to be in custody for state habeas corpus purposes.[225]     

           

            The court’s decision in People v. Villa thus laid to rest what had been an open issue in California habeas proceedings.  Immigration custody will therefore not satisfy the custody requirement for state habeas proceedings. 

[220] Contreras v. Schiltgen, 122 F.3d 30 (9th Cir. 1997) (dismissing habeas action challenging lawfulness of state conviction brought against custodial INS District Director by petitioner who had finished serving his state sentence); Resendiz v. Kovensky, 416 F.3d 952 (2005) (immigration custody does not constitute custody sufficient to grant federal habeas jurisdiction sufficient to challenge legal validity of conviction underlying deportation proceedings, after AEDPA and IIRAIRA, so a petitioner may not collaterally attack his state court conviction in a 28 U.S.C. § 2241 petition against the INS).

[221] People v. Villa (2009) 45 Cal.4th 1063.

[222] Ibid.

[223] Id. at p. 1070.

[224] People v. Villa (2009) 45 Cal.4th 1063, 1073.

[225] Id. at p. 1074.