The most common forms of post-conviction relief capable of vacating or modifying a criminal sentence include:

 

direct appeal from the sentence (see § 8.29, infra);

petition for a writ of habeas corpus (see § 8.30, infra);

non-statutory motion to vacate the sentence (see § 8.31, infra);

petition for a writ of coram nobis (see § 8.32, infra);

motion to correct void sentence (see § 8.33, infra);

suggestion that the sentencing court recall the sentence pursuant to Penal Code § 1170(d) (see § 8.34, infra); and

motion to modify the conditions of probation under Penal Code § x1203.03 (see § 8.35, infra).

 

            The discussion here will not attempt to discuss each of these vehicles at length.  A rich literature is already available concerning post-conviction procedure and practice, including Chapter 6, supra, regarding post-conviction vehicles to vacate criminal convictions.  The brief discussion here will focus on the basic practical and procedural requirements of each form of relief useful for vacating or reducing a sentence, and any features of particular interest to counsel attempting to vacate or reduce criminal sentences for immigration purposes.

 

Certain important immigration consequences of a conviction can also be changed by means of a motion to reduce the level of the offense, from felony to misdemeanor, or from misdemeanor to infraction.  See Chapter 9, infra.

Ninth Circuit

POST CON RELIEF " FEDERAL " SENTENCE " MOTION TO REDUCE SENTENCE UNDER 18 U.S.C. 3582(c)(2)
United States v. Sykes, 658 F.3d 1140 (9th Cir. Sept. 26, 2011) (affirming denial of motion to reduce sentence pursuant to 18 U.S.C. 3582(c)(2), based on the claim the district court's modification of his sentence to the 120"month mandatory minimum term pursuant to 21 U.S.C. 841(b)(1)(A) constituted the application of a new sentence, in violation of Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010), because it concluded that the district court's application of the 120"month mandatory minimum term pursuant to 18 U.S.C. 841(b)(1)(A) did not constitute the imposition of a new sentence).

Other

CAL POST CON " MANDATE
Lewis v. Supreior Court, 169 Cal.App. 4th 70 (Dec. 15 2008) from the Sixth District. The court held that writ of mandate is an appropriate procedure to remedy the unconstitutionality of a mandatory sex registration sentence for a 20 year old case--where sex registration has now been ruled unconstitutional in that kind of case. They state that unlike a motion to vacate, a petition is an independent proceeding and "the writ will lie where the petitioner has no plain, speedy and adequate alternative remedy..." They also note that in the case of People v. Picklesimer (rev. granted Oct. 16, 2008) the Supremes will decide if a motion to vacate in like circumstances is the proper remedy.