Although traditional criminal custody may have expired, the issue is not moot so long as the petitioner still suffers other collateral consequences of the criminal conviction, such as stigma, the blot on his or her criminal history, the existence of a prior conviction that might enhance future sentences (in the event s/he were convicted of some new offense in the future), and the like, completely independent of any immigration consequences.  These collateral consequences are ample to forestall any finding that the present proceeding is moot, even apart from the immigration issues. 

 

Whenever the defendant is in physical custody or in constructive custody on probation or supervised release, the action is not considered moot because both direct and indirect collateral effects of the conviction remain.[243]  If the petitioner has been released from constructive custody after the filing of the post-conviction action,[244] the action is not rendered moot merely because the “‘in custody’ requirement” of the habeas statute is no longer satisfied.[245]  The relevant inquiry is whether the petitioner can demonstrate “collateral consequences adequate to meet Article III’s injury-in-fact requirement.”[246]  “The mere possibility that a conviction may result in collateral consequences is enough to preserve a criminal case from ending ignominiously in the limbo of mootness.”[247]  Even after release from physical and constructive custody on parole or probation, the immigration effects of the conviction are also sufficient consequences to prevent the action from being moot.[248] 

 

Deportation does not render moot a noncitizen’s federal habeas action challenging the validity of a removal order on the basis of an aggravated felony, since the petitioner can show some “collateral consequence” i.e., “some concrete and continuing injury other than the now-ended [threat of removal]” to establish a live case or controversy.[249]  The continuing injury can be ineligibility from various forms of immigration relief from removal, such as cancellation, or future inadmissibility to the United States.[250] 

 

Other collateral consequences sufficient to forestall mootness include inability to engage in certain businesses, to serve as a juror, and to vote.[251]  Obviously, all of these and more adverse collateral consequences would prevent any finding of mootness.

 

            California law is even stronger, holding that even if the case is moot, that does not foreclose the court from acting on a habeas petition.[252]

 

While collateral immigration consequences are sufficient to forestall mootness,[253] it is wiser to rely on non-immigration related collateral consequences for this purpose to minimize the chances the immigration authorities can convince the immigration or federal courts that the order vacating the conviction is ineffective to remove adverse immigration consequences on the basis of a claim the order was issued solely to avoid immigration consequences.  See § 6.4, supra.

[243] See United States v. Verdin, 243 F.3d 1174 (9th Cir. 2001) (federal appeal challenging sentencing guidelines calculations not moot where defendant released from custody but still on supervised release); Jones v. Cunningham, 317 U.S. 236 (1963) (parolee is in custody for habeas corpus jurisdictional purposes).

[244] For habeas corpus jurisdiction to exist, “custody,” whether in the form of actual physical custody, or constructive custody on probation or parole must exist on the day of filing.  See Sibron v. New York, 392 U.S. 40, 55-56 (1968).  Jurisdiction is not lost if thereafter the petitioner is released from habeas corpus custody.

[245] Spencer v. Kemna, 118 S. Ct. 978, 983 (1998).

[246] Id. at 986.

[247] Sibron v. New York, 392 U.S. 40, 55 (1968).

[248] See, e.g., United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (finding the possibility of deportation to be a serious collateral consequence of a conviction).

[249] Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. 2004); Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. 2004).

[250] Ibid.; Swaby v. Ashcorft, 357 F.3d 156 (2d Cir. 2004); United States v. Madrigal-Valadez, 561 F.3d 370, 373-374 (4th Cir. 2009).

[251] See Carafas v. LaVallee, 391 U.S. 234 (1968); Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985) [collateral consequences sufficient to preclude mootness include possibility of impeachment in future judicial proceeding, possibility of prosecution under a persistent offender statute, or possibility of an enhanced sentence for future crimes]; United States v. Walgren, 885 F.2d 1417, 1421 (9th Cir. 1989) [presumption of collateral consequences]; cf. Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994)(dictum); see also Larche v. Simons, 53 F.3d 1068, 1069 (9th Cir. 1995).

[252] C.E.B., Appeals And Writs In Criminal Cases § 2.96 (2d ed. 2008).

[253] See, e.g., United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (finding the possibility of deportation to be a serious collateral consequence of a conviction); Chong v. District Director, INS, 264 F.3d 378 (3d Cir. 2001) (“[T]he Board’s order of removal creates sufficient collateral consequences to render Chong’s petition a live case or controversy by preventing her from entering the United States for ten years.”) ; United States v. Gonzalez-Roque, 301 F.3d 39 (2d Cir. 2002) (habeas action was not mooted by deportation due to possibility of future arrest and imprisonment upon illegal re-entry after deportation); Cuevas-Diaz v. Ashcroft, 37 Fed.Appx. 935 (9th Cir.  2002) (unpublished) (possibility of illegal re-entry prosecution precluded mootness).

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.