Post-Conviction Relief for Immigrants



 
 

§ 5.27 C. Habeas Corpus

 
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A writ of habeas corpus may be sought in either state or federal court collaterally to attack an order of confinement or criminal judgment.  Among other things, it may be used to vacate a judgment of conviction, to obtain a remand for a new trial when the right to counsel has been denied, or to correct a sentencing error.[69]  If the conviction is vacated as legally invalid through use of habeas corpus, it may not be used at all against the defendant for immigration purposes.  See Chapter 4, supra.

 

A habeas corpus petition may be filed in federal court challenging the­ constitutionality of the custody of the state petitioner under 28 U.S.C. § 2254 or the legality of the custody of a federal prisoner under 28 U.S.C. § 2255.[70]  After all state remedies have been exhausted unsuccessfully, usually by filing a petition for review in the state supreme court, counsel may file a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal court to attack the state conviction on the grounds of denial of the federal constitutional claims raised in state court.

 

            Three elements need generally be shown to obtain post-conviction relief on habeas corpus: (a) a constitutional error occurred in the conviction; (b) petitioner suffered prejudice, i.e., it is reasonably possible a more favorable outcome would have occurred but for the error; and (c) the error is currently resulting in some form of unlawful custody.

 

The common law petition for a writ of habeas corpus has largely been supplanted in federal court by the modern motion to vacate, set aside or correct a sentence provided by 28 U.S.C. § 2255.  This remedy is available only to people convicted in federal courts who are in actual or constructive custody on the date the federal motion is filed.  State prisoners claiming to be in custody as the result of a state conviction obtained in violation of the United States Constitution may file a federal habeas petition under 28 U.S.C. § 2254.  Under some circumstances, the 2255 motion will be considered “inadequate or ineffective to test the legality of [a prisoner’s] detention.”[71]  When that occurs, persons convicted of federal offenses may file a petition for habeas corpus.[72]

 


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

[70] Detailed discussion of federal habeas corpus procedure may be found in J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure (3d ed. 2003); C.E.B., Appeals and Writs in Criminal Cases, Chapter 4 (2003); C.E.B., California Criminal Law: Procedure and Practice, Chapter 43 (7th ed. 2002); Matthew Bender, California Criminal Defense Practice § 102.11 (2003).

[71] 28 U.S.C. § 2255.

[72] 28 U.S.C. § 2241.

Updates

 

POST CON RELIEF " FEDERAL " MENTAL INCOMPETENCY DOES NOT PROVIDE GROUNDS TO STAY FEDERAL HABEAS CORPUS PROCEEDINGS
Ryan v. Valencia Gonzales, 568 U.S. ___, 133 S.Ct. 696, 184 L.Ed.2d 528 (Jan. 8, 2013) (the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when state prisoner-petitioners are adjudged incompetent; neither 18 U.S.C. 3599 nor 18 U.S.C. 4241 provides such a right).

Second Circuit

POST CONVICTION RELIEF - NO PETITION FOR REVIEW JURISDICTION OVER HABEAS PETITION CHALLENGING CONVICTION
Sandher v. Gonzales, ___ F.3d ___ (2d Cir. March 15, 2007) (dismissing habeas petition that challenged criminal conviction, and had been transferred from district court to court of appeals under REAL ID Act of 2005 106 since section 106 does not apply to habeas petitions challenging a criminal conviction). http://caselaw.lp.findlaw.com/data2/circs/2nd/064262p.pdf

Fourth Circuit

POST CON RELIEF - HABEAS - FEDERAL - DUE PROCESS FOR ENEMY COMBATANT
Al-Marri v. Pucciarelli, ___ F.3d ___, 2008 WL 2736787 (4th Cir. Jul. 15, 2008) (en banc) (per curiam) (petitioner had not been afforded sufficient process to challenge his designation as an enemy combatant).

Ninth Circuit

POST-CON HABEAS CORPUS - FEDERAL - EVIDENCE OF ACTUAL INNOCENCE
Smith v. Baldwin, 466 F.3d 805 (9th Cir. Oct. 24, 2006) (petitioner raising claim of actual innocence, and that state coerced principal witness into not testifying, may pursue federal habeas even though he did not comply with all the procedural prerequisites, holding petitioner met Schlup standard after according disputed witness' statements the benefit of the presumption of truthfulness), citing Schlup v. Denno, 513 U.S. 298, 315 (1995).
POST CON RELIEF - HABEAS - FEDERAL
Buckley v. Terhune, ___ F.3d ___, 2005 WL 147437 (9th Cir. Jan. 25, 2005) (grant of habeas corpus reversed where state court's determination of facts not unreasonable under AEDPA).
http://caselaw.lp.findlaw.com/data2/circs/9th/0355045p.pdf
JUDICIAL REVIEW - HABEAS - IMMIGRATION CASES
Nunes v. Ashcroft, 375 F.3d 805 (9th Cir. 2004), rehg en banc denied __ F.3d __, 2004 WL 151667 (9th Cir. 2004) (doctrine of issue preclusion prevents noncitizens from filing habeas corpus to challenge whether an offense is an aggravated felony, since the same issue was raised in determining whether the court had jurisdiction to hear the case on petition for review; twelve circuit judges dissented to denial of rehearing, arguing that the decision cuts off habeas to most immigrants seeking the petition).

Other

RESOURCES " POST CON RELIEF " FEDERAL " FEDERAL HABEAS MANUAL
http://www.federalhabeasmanual.com/FALL.pdf

 

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