Tooby's California Post-Conviction Relief for Immigrants

 

Coram nobis[115] is a judicially-created remedy to secure relief from a judgment which was rendered by the court in ignorance of a fact which (a) does not go to guilt or innocence, but (b) if known by the court would have prevented the judgment.  The purpose of the writ is to provide a remedy, where none is otherwise available, against a judgment that was procured under circumstances that offend fundamental concepts of justice such as the due process clause of the Fourteenth Amendment.[116] The purpose of the writ is to provide a remedy, where none is otherwise available, against a judgment that was procured under circumstances which offend fundamental concepts of justice such as the due process clause of the Fourteenth Amendment. [117]

 

            In People v. Kim, the California Supreme Court recently curtailed the availability of coram nobis relief.[118]  Kim raised a number of distinct coram nobis claims.  He alleged that he previously had not known that he would be deported because the conviction constituted a second conviction of a crime of moral turpitude.  He also noted that he had been unaware at the time of the plea that, if deported, he would be obligated to serve in the South Korean military and if he refused to serve on religious grounds, he would be imprisoned there. 

 

            The Supreme court held that Kim was procedurally barred from coram nobis relief for three reasons:  (1) he failed to establish due diligence in discovering and presenting his claims; (2) he failed to avail himself of other legal remedies when he had the chance, even though the failure was without fault or negligence on his part; and (3) he engaged in piecemeal litigation presenting his current claims in a second coram nobis petition.

 

            Further, the Supreme Court held that Kim was not entitled to coram nobis relief on the merits.  This decision held that the “unknown fact” that is the basis for coram nobis relief “must establish a basic flaw that would have prevented rendition of the judgment.”[119]  “New facts that would merely have affected the willingness of a litigant to enter a plea, or would have encouraged or convinced him or her to make different strategic choices or seek a different disposition, are not facts that would have prevented rendition of the judgment.”[120] 

 

            Accordingly the court found that the fact that Kim had been unaware of the immigration consequences of the conviction at the time of his plea could not form the basis of a legally cognizable coram nobis petition.  The fact that the immigration consequences of the plea were unknown to the court and parties was a “mistake of law,” rather than a “mistake of fact” sufficient to warrant coram nobis relief.[121] 

 

            The court rejected the reasoning in People v. Wiedersperg, which had held that the requirements for coram nobis were met where, at the time of accepting the plea, the judge, defendant, and defendant’s attorney were all unaware that the defendant was a noncitizen, and the defendant testified that he would not have pleaded guilty had he known that he would thereby be rendered deportable.[122]  The court of appeals reasoned that, because this newly discovered evidence did not go to guilt or innocence, and neither defendant nor counsel was aware of the possibility of deportation until deportation proceedings were begun, this “mistake of fact” was sufficient to satisfy the coram nobis requirements.  Without directly overruling People v. Wiedersperg, the court in People v. Kim made clear that the court of appeals’s decision had limited applicability to future cases.[123] 

 

            The Kim court made clear that coram nobis petitions may only be used in a limited number of factual scenarios.  See § 6.41,  infra

 

            Other grounds may exist in which the prejudice would invalidate the sentence, but not the conviction, as where the judge was unaware that the defendant was mentally incapacitated when the plea was entered, or where the sentence was entered in violation of a state official’s broken promise.[124]

[115]  For further information see C.E.B., Appeals and Writs in Criminal Cases § § 2.149‑ 2.180  and current update); Erwin, Millman, Monroe, Sevilla, Tarlow, California Criminal Defense Practice, § 102.20 (Matthew Bender 2009); Prickett, The Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1 (1990).  For discussion of writ of error coram nobis and immigration law, see D. Kesselbrenner  and L. Rosenberg, Immigration Law and Crimes (Matthew Bender 2008), § 4.2(b) and Garcia, The Coram Nobis Writ in an Immigration Law Context, 2 U.C.L.A. Chicano Law Review 92 (1975).

[116]  See, e.g., People v. Shorts (1948) 32 Cal.2d 502, 197 P.2d 330; People v. Wiedersperg (1975) 44 Cal.App.3d 550, 118 Cal.Rptr. 755; Taylor v. Alabama, 335 U.S. 252, 259, 68 S.Ct. 1415 (1947).

[117] For further information see C.E.B., Appeals and Writs in Criminal Cases § § 2.149‑2.180 (2d ed. 2008); Erwin, Millman, Monroe, Sevilla, Tarlow, California Criminal Defense Practice, § 102.20 (Matthew Bender 2008); Prickett, The Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1 (1990).  For discussion of the writ of error coram nobis and immigration law, see D. Kesselbrenner  and L. Rosenberg, Immigration Law and Crimes (Matthew Bender), § 4.2(b) and Garcia, The Coram Nobis Writ in an Immigration Law Context, 2 U.C.L.A. Chicano Law Review 92 (1975).

[118] People v. Kim (2009) 45 Cal.4th 1078, 90 Cal.Rptr.3d 355.

[119] Id. at p. 1103.

[120] Ibid.

[121] Id. at p. 1102.

[122] Because Penal Code § 1016.5 now requires the court to advise the defendant of the possibility of deportation and other adverse immigration consequences prior to plea, it is unlikely that a case could occur in which (a) § 1016.5 was complied with, yet (b) the client was unaware of his vulnerability to deportation, unless there was a translation problem so the advisement was given but not understood.  On the other hand, because of all the legal mumbo jumbo at the time a plea is entered, it is quite common for a defendant not to understand the full significance of the § 1016.5 admonition, and coram nobis should be available in this instance.

[123] People v. Kim (2009) 45 Cal.4th 1078, 1103-1104.

[124] People v. Shipman, supra (incapacitation); People v. Wadkins (1965) 63 Cal.2d 110, 113, 45 Cal.Rptr. 173 (fraudulent inducement); People v. Chaklader (1994) 24 Cal.App.4th 407, 29 Cal.Rptr.2d 344 (defendant’s hope that later federal sentence would be concurrent insufficient to establish grounds for coram nobis relief); People v. Wadkins (1965) 63 Cal.2d 110, 113, 45 Cal.Rptr. 173 (coram nobis appropriate where guilty plea is induced by mistake, fraud or coercion); Appeals and Writs in Criminal Cases § 2.151 (C.E.B. 2008); People v. Gilbert (1944) 25 Cal.2d 422, 443, 154 P.2d 657 (defendant’s reliance must be in good faith and without negligence on his part); People v. Abdullah (1992) 6 Cal.App.4th 1728, 1737, 9 Cal.Rptr.2d 131 (defendant hoped to be placed in federal custody but was not told this was more than a mere possibility); People v. Goodrum (1991) 228 Cal.App.3d 397, 401, 279 Cal.Rptr. 120 (defendant must show a reasonable person in his situation would have pleaded differently if more fully advised of consequences).