A writ of habeas corpus may be sought in state court collaterally to attack an order or 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.[290]  The Anti-Terrorism Act [291] does not affect or restrict state habeas corpus or other forms of state post-conviction relief.

 

All states have a procedure by which a defendant may seek to vacate a conviction in the trial court after judgment has been imposed.[292]  Some states provide this procedure by statute; others have a common-law extraordinary writ procedure.  All states have a modern post-conviction procedure as the main post-conviction remedy, authorized by case law, statutory enactment, or promulgation of a court rule.[293]  Most states also provide at least one additional, alternative post-conviction remedy that supplements the principal post-conviction remedy and often authorizes relief in situations where relief is otherwise unavailable or impractical, for example, because a statute of limitations precludes relief.[294]

 

The state vehicles for providing post-conviction relief differ from state to state. Often these post-conviction acts also require a constitutional defect in the original proceedings or some other type of fundamental error.

New York.  A New York conviction that has been vacated by a post-conviction order pursuant to Article 440 of the New York Criminal Procedure Law governing Post Judgment Motions no longer constitutes a conviction for immigration purposes.[295]  The BIA held that because the post-conviction vehicle was not an expungement statute or a state rehabilitative statute, it must grant full faith and credit to the state court order vacating the conviction.[296]

[290] E.g., 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 California Rules of Court 260, concerning habeas corpus procedure in superior courts.

[291] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (hereinafter AEDPA).

[292] See Donald E. Wilkes, State Post-conviction Remedies and Relief (2003 Edition) (Appendix A offers a state-by-state description of available post-conviction remedies).

[293] Ibid. at § 3.2 (2003 Edition).

[294] Id.

[295] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000). 

[296] Id. at 3.

Other

POST CON RELIEF " VIRGINIA " VEHICLES " HABEAS CORPUS IS THE SOLE WAY TO RAISE PADILLA INEFFECTIVENESS
Commonwealth v. Morris, 281 Va. 70, 705 S.E.2d 503 (Va. 2011) (state habeas was the exclusive vehicle to assert Padilla ineffectiveness claim in Virginia, so that petitioner who was no longer in custody and outside of the habeas filing deadline was unable to make Padilla claim in any forum).