Post-Conviction Relief for Immigrants

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.