Tooby's California Post-Conviction Relief for Immigrants
- §6.1 I. Introduction
- §6.2 A. Introduction
- §6.3 B. Overview of Forms of Relief and Immigration Effect
- §6.4 II. Immigration Consequences of an Order Vacating a Conviction: Obtaining an Order the Immigration Authorities Will Respect
- §6.5 A. A Legally Invalid Conviction Cannot Trigger Immigration Consequences
- §6.6 1. The Long-Standing Rule
- §6.7 2. The New IIRAIRA Definition of Conviction Did Not Change the Basic Rule
- §6.8 B. An Order Vacating a Conviction as Legally Invalid Eliminates the Conviction for All Immigration Purposes
- §6.9 C. Reopening Removal Proceedings After a Conviction Has Been Vacated
- §6.10 D. A Conviction Vacated on Purely Humanitarian Grounds, or Under a State Rehabilitative Statute, May Continue to Exist for Immigration Purposes
- §6.11 1. Humanitarian Grounds
- §6.12 2. State Rehabilitative Statutes
- §6.13 E. The DHS Cannot Collaterally Attack, in Immigration Court, the Validity of a Criminal Court Order Vacating a Conviction
- §6.14 F. The DHS Argument That An Order Vacating a Conviction is Beyond the Jurisdiction of the Criminal Court and Should Not Be Honored
- §6.15 III. Motion to Withdraw Guilty Plea Under Penal Code 1018
- §6.16 IV. Direct Appeal from Conviction
- §6.17 A. Requirements for Felony Appeals
- §6.18 B. Requirements for Misdemeanor Appeals
- §6.19 C. Procedure
- §6.20 1. Finality of Decision
- §6.21 2. Filing a Late Notice of Appeal
- §6.22 3. Attacking a Waiver of Appeal
- §6.23 4. Negotiating a Better Result on Appeal
- §6.24 V. Writ of Habeas Corpus
- §6.25 A. General Requirements for Issuance of the Writ
- §6.26 B. Federal Habeas Corpus . Generally
- §6.27 C. The Petition Must Be Timely Filed
- §6.28 1. Federal Habeas Corpus and the AEDPA Statute of Limitations
- §6.29 a. The Starting Date
- §6.30 b. Statutory Tolling
- §6.31 c. Equitable Tolling
- §6.32 2. Attacking Federal Convictions
- §6.33 3. California Habeas Corpus
- §6.34 D. The Requirement of Custody
- §6.35 1. Registration Requirements as Custody
- §6.36 2. Immigration Custody Insufficient
- §6.37 3. The Future
- §6.38 4. Case Not Moot So Long As Collateral Consequences, Such as Immigration Consequences, Damage the Defendant
- §6.39 E. Procedure
- §6.40 F. Raising Habeas Issues in Court of Appeal
- §6.41 VI. Petition for Writ of Error Coram Nobis
- §6.42 A. Procedure
- §6.43 B. Appeal from Denial of Coram Nobis
- §6.44 VII. Nonstatutory Motion to Vacate on Constitutional Grounds
- §6.45 A. A Nonstatutory Motion to Vacate is a Conceptually Different Vehicle for Post-Conviction Relief than Coram Nobis
- §6.46 B. The Trial Court Retains the Inherent Authority to Grant a Post-Judgment Motion to Vacate a Guilty Plea Based on Ineffective Assistance of Counsel
- §6.47 C. Procedure for Motions To Vacate In General
- §6.48 D. The Denial of a Nonstatutory Motion to Vacate Is Appealable Where the Basis of the Motion Raises Matters Outside the Record of the Case
- §6.49 VIII. Statutory Motion to Vacate Based on Judge's Failure to Provide 1016.5 Warning of Possible Adverse Immigration Consequences
- §6.50 A. A Motion to Vacate is the Proper Manner by Which to Raise a Violation of this Statute
- §6.51 B. Timeliness of Motion to Vacate
- §6.52 C. Procedure for Motions To Vacate In General
- §6.53 1. The Court May Decide a Motion Without Hearing Live Testimony
- §6.54 2. Non-Party Declarations May Not Be Excluded for Lack of Cross-Examination
- §6.55 3. Defendant's Declaration Should Not Be Excluded for Lack of Cross-Examination Unless Court Grants Hearing With Live Testimony
- §6.56 D. Proving Citizenship
- §6.57 IX. Attacking Misdemeanor Convictions
- §6.58 X. Dismissals Under Penal Code 1385
- §6.59 A. Immigration Effects of Dismissal
- §6.60 1. Dismissal of Conviction
- §6.61 2. Dismissal of Sentence Enhancement
- §6.62 3. Dismissal of Sentence
- §6.63 4. Dismissal of Language From Charge
- §6.64 B. Grounds for Dismissal
- §6.65 1. Interests of Justice
- §6.66 2. Grounds of Legal Invalidity
- §6.67 3. Equitable Grounds
- §6.68 4. Proper Grounds
- §6.69 5. Improper Grounds
- §6.70 6. Abuse of Discretion
- §6.71 C. Procedural Requirements
- §6.72 1. Who May Make Motion
- §6.73 2. Timing of Dismissal
- §6.74 3. Statement of Reasons
- §6.75 4. Dismissal as Bar
- §6.76 5. Appellate Review
§ 6.61 2. Dismissal of Sentence Enhancement
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Immigration Consequences. Penal Code § 1385 orders are commonly used to dismiss sentence enhancements that would otherwise require the court to impose disproportionate sentences. This type of dismissal order effectively eliminates the sentence enhancement from the record of conviction, as though the enhancement had never been filed against the defendant in the charging paper. It therefore eliminates any consideration of the facts contained in the dismissed enhancement for the purpose of determining the nature of the conviction for immigration purposes. The legal basis of this conclusion is the same as for sentences themselves. See § 6.62, infra.
