Post-Conviction Relief for Immigrants

In California, a habeas corpus petition must be filed while the client is still incarcerated, on probation or on parole, in order for the client to be considered “in custody.”[34]  If probation or parole has ended, habeas may normally not be used.[35]

            There are no statutory time requirements for the filing of post-conviction relief in California; the equitable doctrine of laches applies.  Habeas writs have sometimes been issued many years after the conviction was suffered, but courts are increasingly warning that the laches doctrine will bar relief where there has been unreasonable delay by the defense that has prejudiced the prosecution.[36]  Relief should therefore be sought promptly after discovery of the grounds.

[34] If the petition is filed while the client is still on probation, for example, the court has jurisdiction to litigate the action to its conclusion, even if probation terminates in the meantime, so long as there is still sufficient continuing prejudice to the client (such as adverse immigration consequences) to prevent the case from being considered moot.  See California Continuing Education of the Bar (C.E.B.), Appeals and Writs in Criminal Cases § 2.96 (2002).

[35] It is possible to argue the client is still in custody if s/he is required to register (five years after sentence for narcotics offenses; for life for sex offenses) or if s/he is in custody of the immigration authorities as a result of the unconstitutional criminal conviction.  The Ninth Circuit has held, however, that federal habeas does not lie against the INS, which has a right to rely on the conviction.  Contreras v. Schiltgen, 122 F.3d 30 (9th Cir. 1997).  The Ninth Circuit has also twice rejected the theory that a registration requirement constitutes custody for purposes of federal habeas jurisdiction.  E.g., Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998).

[36] In re Clark, 5 Cal.4th 750, 786 (1993).