Tooby's California Post-Conviction Relief for Immigrants

If the client is no longer “in custody” as a result of the conviction that must be vacated, or if a favorable decision is necessary sooner than the six months or so it may take to vacate a conviction on habeas corpus, counsel may attempt to vacate a conviction by filing a nonstatutory motion to vacate on constitutional grounds, such as ineffective assistance of counsel at the time of plea and sentencing or violation of the state and federal rights to due process and a fair trial.  In fact, counsel may raise any ground here that may be raised on habeas corpus.[288]

            The motion may be made on the regular law and motion calendar, with two weeks notice to the prosecution, and so is potentially far faster than habeas corpus.  Counsel usually has a choice between placing it on the criminal master calendar, or placing it on the regular law and motion calendar of the judge who took the plea or sentenced the defendant.  If the motion is denied, and the defendant wishes to appeal, a certificate of probable cause to appeal under Penal Code § 1237.5 is probably not required even if the conviction was based on a plea of guilty or no contest.[289]

[288]  See Chapter 7, infra.

[289] People v. Kraus (1975) 47 Cal.App.3d 568, 121 Cal.Rptr. 11; but see People v. Castelan (1995) 32 Cal.App.4th 1185.  Counsel may in an abundance of caution seek a certificate anyway.