Obviously, decisions from both the state and federal courts finding a lack of custody on the basis of DHS detention gives rise to an unwinnable dilemma, with both courts apparently willing to “pass the buck” to the other in an unjust effort to avoid granting relief from the disastrous immigration effects of unconstitutional state convictions.

 

            There are several strong arguments, however, that the Contreras case was wrongly decided and that federal habeas corpus pursuant to 28 U.S.C. § 2241 should lie to correct constitutional errors in the underlying conviction.

 

            First, to the extent that the state courts reject DHS custody as sufficient, the petitioner is left without any forum in which to challenge the constitutionality of the conviction.  The Contreras court did not consider the prospect that, without federal jurisdiction, the petitioner would be left without a remedy -- a possibility that could itself amount to an unconstitutional suspension of the writ of habeas corpus.  This argument may be especially powerful where the grounds rendering the conviction unconstitutional did not come to light until after state custody had ended. 

 

            By holding that the only way a petitioner can challenge DHS action based on a state conviction is to overturn the conviction in state court, the Contreras court implied that it believed the state courts would in fact have jurisdiction over such actions.  As the contrary view may be emerging, undermining this premise on which Contreras was based, the Ninth Circuit may be willing to reconsider its holding. 

 

            The Contreras court was also wrong in its view that the state court retains the supreme interest in preserving or correcting the judgments.  Once a case has concluded in state court, and the defendant is no longer in even constructive custody, the state retains little, if any, interest in protecting its judgment merely to preserve the collateral effects of the judgment.  At that point, the federal government, specifically the DHS, would seem to have a stronger interest in asserting the validity of the state conviction underlying its effort to deport the defendant.  Similarly, the federal courts at that point have a stronger interest in ensuring that involuntary banishment from the United States comports with the Constitution.  Deportation can be the equivalent of criminal punishment.  For the federal court to say that the state court is where noncitizens must vindicate their rights before being deported is a shortsighted attempt to avoid responsibility for the federal government’s ultimate act of deportation.

 

            Clearly, the argument that the INS was entitled to rely on the challenged prior (at least until it has been set aside) does not distinguish this situation from every other habeas corpus case, in which the prison warden is also entitled to rely on the challenged conviction until it is set aside.  It would be ridiculous to suggest that a habeas petition that names the warden as respondent must be dismissed because the warden has done nothing wrong in relying upon a facially valid conviction in detaining the petitioner.  Unless and until the conviction is vacated, a conviction may be relied upon for any number of purposes, but its prima facie existence does not defeat habeas corpus jurisdiction.  Indeed, the custodian is invariably required to come forward to defend its constitutionality.

 

            Aside from policy concerns, the Contreras court simply erred when it found an absence of jurisdiction.  The court relied upon Custis for the proposition that a noncitizen may not collaterally challenge his conviction in a deportation proceeding.  Custis dealt with the situation where the defendant was attacking the prior conviction through procedural means in the current sentencing proceeding.  In this case, the DHS is taking action based solely on what would be the prior conviction in the Custis context, but here, it is not a prior conviction, it is the sole basis for DHS jurisdiction and action.  Custis simply does not apply because this is not a matter of a prior conviction.

 

            Moreover, the Ninth Circuit decision attempted to distinguish Garlotte v. Fordice,[226]on the basis that in Garlotte, both convictions occurred in the same jurisdiction, whereas here, the prior conviction occurred in state court, whereas the current DHS custody was federal.  No reason was given why this difference should lead to a different result than the Supreme Court reached in Garlotte.  Moreover, a number of decisions have followed the Garlotte rule even where the convictions occurred in different jurisdictions.[227]  Another panel of the Ninth Circuit has also held that an expired state sentence may be attacked on federal habeas if it enhances a current federal sentence.[228]  In Maleng v. Cook, 490 U.S. 488 (1989), itself, the prior conviction under attack had been rendered by a different “sovereign” than had imposed the current sentence.[229]  The Supreme Court, however, did not reach the issue whether Cook could challenge his 1959 expired state conviction on the ground it had been used to enhance his current federal sentence.[230]

 

            While the federal immigration law may properly limit the DHS inquiry into the fact of conviction, the Contreras court did not consider that a federal statute cannot limit the scope of constitutionally based availability of the writ of habeas corpus under Article One, Section Nine.  It is quite clear that when a person is being held by the DHS, that person is in fact in custody.  Where the basis of that custody is the result of constitutional error, federal habeas corpus should be available to test the legality of the deportation. 

 

            Counsel may be able to persuade a state judge that this actual or constructive custody by the DHS (or other DHS penalties) based on an illegal conviction is sufficient government restraint to support habeas corpus proceedings in the criminal court that issued the conviction, despite some adverse federal law on the question.  Counsel should argue that jurisdiction remains to challenge an unconstitutional conviction on the authority below. 

 

            PRACTICE TIP:  A non-statutory motion to vacate does not require a showing a custody as a prerequisite to relief.  It may therefore be used as an alternative in the event that a habeas corpus petition may not be used due to a lack of custody.  See § § 6.41, 6.44, infra.

 

            Federal law supports the rule that habeas corpus will lie when the conviction results in enhanced custody in a different jurisdiction or under another conviction.  Under federal law, a petitioner incarcerated under a conviction may by habeas corpus challenge a second conviction so long as the challenged conviction adds in some way to the “aggregate of the . . . sentences” the petitioner eventually must serve.[231]  As Professor Liebman has written:

 

The challenged conviction has sufficient adverse consequences to establish custody if it (i) does or may affect the length or conditions of the current incarceration under another conviction, (ii) subjects the petitioner to future incarceration in the same penal system in which the petitioner now is incarcerated, or (iii) subjects the petitioner to future incarceration in another jurisdiction at least so long as the second jurisdiction has lodged a detainer with the officials currently incarcerating the petitioner.[232]

 

            Habeas corpus may be used while petitioner is in custody on the second of two sentences, although the petition challenges the validity of the first sentence or conviction, so long as the earlier conviction may affect the length or conditions of the present incarceration.[233]

 

            In United States ex rel. Zegarski v. Moyer,[234] the court held that the federal habeas corpus custody requirement was satisfied by immigration custody pursuant to a deportation order that was issued as a collateral consequence of a Florida criminal conviction for which the immigrant had served the entire sentence and was no longer in state custody.  The court reasoned that habeas could be used to challenge the constitutionality of conviction A, even though the petitioner was no longer in custody on that conviction, when it has been used to augment the sentence for conviction B, as to which the petitioner is still in custody.[235]

 

            The prosecution may point out that the client is facing civil detention and deportation by the DHS, not further criminal penalties in another jurisdiction based upon the conviction.  Defense counsel may point out that California law recognizes that deportation and DHS detention are drastic penalties that are the direct result of the conviction.[236]  Finally, federal law recognizes that deportation as a result of a criminal conviction is “the equivalent of punishment,”[237] the “loss of property or life or all that makes life worthwhile.”[238]  Banishing an immigrant forever, away from home and family, never to return, is a consequence that should be avoided, “a sentence to a life in exile.”[239]  This would be “exile, a dreadful punishment.”[240]

 

Finally, the federal courts have held that a noncitizen who has been deported is no longer “in custody” for purposes of habeas corpus jurisdiction under 28 U.S.C. § 2241.[241]  Remember, however, that the relevant inquiry is whether the petitioner is “in custody” on the day the petition is filed.  Thus, if the petitioner is deported during the pendancy of the habeas corpus proceedings, all hope is not lost.  The court retains jurisdiction to complete the adjudication of the habeas proceeding so long as collateral consequences continue to hinge on the outcome of the action, sufficient to create a case or controversy.  Where the petitioner suffers continuing immigration consequences, such as inadmissibility, as a result of the conviction whose constitutionality is being challenged, the action is not moot.  See § 6.38, infra.  Because the BIA can recall the deportation once the conviction has been vacated, the post-conviction court can nonetheless grant effective relief even after the client has been deported.[242]

[226] Garlotte v. Fordice, 115 S.Ct. 1948, 1952 (1995).  In Garlotte, the Supreme Court held habeas jurisdiction existed to attack conviction No. 2 (in which the petitioner is currently in custody) on the basis that that custody was enhanced on the basis of conviction No. 1, which was alleged to be unconstitutional.

[227] E.g., Feldman v. Perrill, 902 F.2d 1445 (9th Cir. 1990)(expired state prior conviction, current federal custody); Mills v. Jordan, 979 F.2d 1273 (7th Cir. 1992) (current Indiana habitual offender sentence enhanced by expired Florida prior); Lowery v. Young, 887 F.2d 1309 (7th Cir. 1989) (current Wisconsin sentence enhanced by expired Georgia priors).

[228] Allen v. State of Oregon, 153 F.3d 1046 (9th Cir. 1998).

[229] Id., 109 S.Ct. 1923, 1925 n.*.

[230] Ibid.

[231] Peyton v. Rowe, 391 U.S. 54, 64‑65 (1968).

[232] I J. Liebman, Federal Habeas Corpus Practice and Procedure 87‑88 (1988), citing Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489 n.4 (1973); United States ex rel. Meadows v. New York, 426 F.2d 1176, 1179 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971).

[233] E.g., Young v. Lynaugh, 821 F.2d 1133, 1137 (5th Cir.), cert. denied, 108 S.Ct. 503 (1987); Sammons v. Rodgers, 785 F.2d 1343, 1345‑1346 (5th Cir. 1986); Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir. 1979) (dicta) (custody established on challenge to earlier conviction if  “"there is a positive, demonstrable relationship between the prior conviction and the petitioner's present incarceration”; sufficient if vacating the conviction would give the petitioner “time served” credit against his present sentence); Cappetta v. Wainwright, 406 F.2d 1238 (5th Cir. 1969); United States ex rel. Urbano v. Yeager, 323 F. Supp. 774 (D.N.J. 1971) (conviction for which sentence was served remained an impediment to the petitioner’s parole from incarceration for a later conviction).

[234] United States ex rel. Zegarski v. Moyer, 1992 U.S. Dist. LEXIS 11575 (N.D. Ill 1992)

[235] Lowery v. Young, 887 F.2d 1309 (7th Cir. 1989); Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir. 1990), cert. denied, 111 S.Ct. 712 (1991).

[236] See, e.g., People v. Barocio (1989) 216 Cal.App.3d 99 (it is ineffective assistance of counsel at the sentencing stage to fail to research and advise of the judicial recommendation against deportation in order to prevent immigration consequences); Penal Code § 1016.5 (California judges have a duty to warn defendants of potential immigration consequences of a plea bargain).

[237] Fong Haw Tan v. Phelan, 333 U.S. 6 (1947)

[238] Ng Fung Ho v. White, 259 U.S. 276 (1922). 

[239] Jordan v. DeGeorge, 341 U.S. 223 (1951).

[240] Klonis v. Davis, 13 F.2d 630, 630-631 (2d Cir. 1926).

[241] Macias v. Greene, 28 F.Supp.2d 635 (D. Colo. 1998).

[242] See Chapter 11, infra.

Other

CAL POST CON " NEW DEVELOPMENTS AFTER KIM
In our ongoing search for new post-conviction tactics on behalf of immigrants, we are exploring several new possibilities: (1) Habeas Custody. While the California Supreme Court has reaffirmed the custody requirement for habeas corpus, there are several situations in which custody is extended: (a) Failure to Register. California criminal law contains a number of registration requirements, in which defendants convicted of certain offenses are required to register with law enforcement. If a defendant fails to register as required, typically criminal penalties can be exacted. For example, if a defendant is convicted of any of a long list of sex offenses, s/he is required to register as a sex offender, often for life, pursuant to Penal Code 290. If the defendant fails to register as required, s/he can be arrested and charged with a violation of this criminal statute. The existence of the prior conviction constitutes an element of the current failure to register offense, as to which the defendant is currently in custody. S/he would then be in actual custody, or released on bail or own recognizance on constructive custody, or sentenced to actual custody, or placed on probation or released on parole (constructive custody). Any of these forms of current custody are sufficient to confer habeas corpus jurisdiction on the courts. The predicate offense, that is the basis of the registration obligation, may have occurred many years before, and as to the predicate conviction, custody may have expired. Yet because the current custody on the failure to register offense is based on the earlier conviction, it is possible to file habeas corpus based on the current custody, and challenge the constitutionality of the predicate conviction. If the predicate conviction is the conviction triggering adverse immigration consequences, it may be possible to attack the earlier conviction by this means, and obtain a court order that the earlier conviction is legally invalid, that can be used in immigration court to avoid its adverse immigration consequences. (b) Other Contexts. The same reasoning can be used in a number of other contexts. For example: (i) Petty Theft With a Prior Conviction. Penal Code 666 penalizes a second or subsequent petty theft offense as a felony if it is preceded by a prior petty theft conviction. The existence of the prior theft conviction is thus an essential element of the current felony charge of petty theft with a prior, and if the defendant is in current custody, actual or constructive, as a result of the current charge, it would be possible to file a habeas petition challenging the constitutionality of the prior theft conviction on which the current charge is based. (ii) Ex-Felon in Possession of a Firearm. A person previously convicted of a felony who is illegally in possession of a firearm can be charged with a violation of Penal Code 12021(a). Once again, the prior felony conviction constitutes an essential element of the current charge, as to which the defendant may be in current criminal custody, actual or constructive. If so, the defendant can file a habeas corpus petition challenging the constitutionality of the prior conviction on the basis of the current custody to which it constitutes an essential element. (iii) Sentence Enhancements Based on Prior Convictions. A number of California criminal offenses carry more serious penalties, under the specific statutes defining the offense, if the defendant suffered a previous conviction listed therein. For example, a person who commits a corporal injury against a spouse, in violation of Penal Code 273.5(a) is punishable by 16 months, two or three years in prison, or by up to one year in county jail. (Ibid.) If that person has a prior conviction for a listed offense, s/he may become punishable by a prison term of two, four, or five years. (See Penal Code 273.5(e)(1); see also 273.5(e)(2).) Driving under the influence of alcohol is also subject to enhanced penalties on the basis of listed prior convictions. Many other common offenses are also subject to enhanced penalties on the same basis. (E.g., carrying a concealed firearm, Penal Code 12025(d).) (iv) Gang Offenses and Enhancements. Criminal street gangs are defined in part by the commission of two or more listed offenses. (See, e.g., Penal Code 186.22(e).) Some of these offenses may have occurred many years prior to the current offense. (These offenses must have occurred after the effective date of this legislation, Jan. 1, 1993. Stats. 1989, c. 930, 5.1.) Since these predicate offenses are also essential elements of the criminal offense of participating in a criminal street gang, under Penal Code 186.22(a), it may be possible to challenge the predicate convictions by habeas corpus based on current custody attributable to the current gang offense. In addition, if a person commits a current felony for the benefit of a criminal street gang, an enhanced sentence may be imposed upon conviction of the current felony offense. An essential element of this sentence enhancement is the commission of two or more listed offenses, as described above. Thus, if a defendant is currently charged with commission of a felony, with sentence to be enhanced on this basis, it may be possible to challenge the predicate convictions by habeas corpus based on current custody attributable to the current gang enhancement.