Tooby's California Post-Conviction Relief for Immigrants

 

A writ of habeas corpus may be sought in state court collaterally to attack a criminal conviction, judgment, or sentence.  See Chapter 6, supra.[109]  If the conviction or sentence is vacated as legally invalid through use of habeas corpus, it may not be used at all against the defendant for immigration purposes.

 

The basic requirements for issuance of the writ are as follows:

 

(1) The petitioner must be in custody, actual or constructive.  This means s/he must at least be on probation or parole on the day the petition is filed.

 

(2) The petition must raise one or more claims of fundamental jurisdictional or constitutional error in the sentence.

 

(3) The petitioner must have exhausted all available administrative remedies.  The habeas corpus petition may not be used as a substitute to raise issues that could have been raised on direct appeal.

 

(4) The issues must not be moot.

 

(5) There are limitations on successive or untimely petitions.[110]

 

            For a more detailed discussion of the procedural requirements and practical considerations of habeas corpus actions, see Chapter 6, supra.

 

Habeas corpus is the primary means by which to raise errors of constitutional or jurisdictional dimension.  For discussion of the grounds to vacate sentences, many of which are properly raised in a habeas corpus petition, see § § 8.38, et seq., infra.

[109] Penal Code § § 1473‑1508; see, e.g., In re Hochberg (1970) 2 Cal.2d 870, 879, 87 Cal.Rptr. 681 (new trial); In re Culberth (1976) 17 Cal.3d 330, 335, 130 Cal.Rptr. 719 (sentencing error).   See also Cal. Rules of Court 260, concerning habeas corpus procedure in superior courts.

[110] 5 California Criminal Defense Practice, supra, § 102.10[2].