Post-Conviction Relief for Immigrants

The argument is that even though no statute may authorize a motion, if the Constitution has been violated, the Constitution implicitly creates a remedy for the violation.  For example, California courts must entertain nonstatutory motions to invalidate particular stages of a criminal case, even entire criminal convictions, on constitutional grounds.[261]

            This rule — that constitutional violations must find a remedy even if no statute provides one — has been specifically applied to claims of ineffective counsel. [262]

            The only exception to the rule that a motion for new trial may be made only on grounds enumerated in the statute occurs where strict adherence to the rule would deny the accused due process of law.  “Since the duty of the trial court to afford every defendant in a criminal case a fair and impartial trial is of constitutional dimension, the inherent power of the court to correct matters by granting a new trial transcends statutory limitations.” [263]

            Where the Constitution has been violated, no statutory authorization is required to give the court jurisdiction to entertain a motion to vacate the conviction.

[261] Murguia v. Municipal Court, 15 Cal.3d 286, 124 Cal.Rptr. 204, 209 n.4 (1975):  “Although no clear California statutory authority provides for such a pretrial motion to dismiss (on grounds of discriminatory prosecution), we have no doubt — in light of the constitutional nature of the issue — as to the trial court’s authority to entertain such a claim.”  Accord, Jones v. Superior Court, 3 Cal.3d 734, 738-739, 91 Cal.Rptr. 578 (1970); People v. Coffey, 67 Cal.2d 204, 215 and n.11, 60 Cal.Rptr. 457 (1967).

[262] People v. Fosselman, 33 Cal.3d 572, 189 Cal.Rptr. 855, 861 (1983).

[263] People v. Cardenas, 114 Cal.App.3d 643, 647-648, 170 Cal.Rptr. 763 (1981), citing People v. Oliver, 46 Cal.App.3d 747, 751, 120 Cal.Rptr. 368 (1975).