Post-Conviction Relief for Immigrants



 
 

§ 5.74 2. Timeliness

 
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Many states have also added a statute of limitations to their principal post-conviction remedy.[297]  The AEDPA one-year statute of limitations does not restrict state habeas corpus or other forms of state post-conviction relief.

 

The prosecution may argue that the petitioner did not pursue post‑conviction relief in a timely manner.[298]  It is thus wise to pursue relief promptly, and where an error could have been addressed by an earlier procedure, i.e., direct appeal, the reasons why it was not addressed earlier should be alleged in the petition.  One can argue that drastic recent changes in immigration law, for the first time, make it necessary to challenge the conviction.  Delay in bringing the petition, however, should not result in dismissal of the petition unless “the state . . . has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.”[299]  This is a limited doctrine:  the state must have lost habeas witnesses with favorable testimony.  The petitioner can usefully resort to the cases holding the defense to a very high standard in showing prejudice from the state’s delay in bringing criminal charges.  The Constitution arguably requires the same standard be used to assess both prosecution and defense delays.[300]


[297] Those states include Alabama, Alaska, Arizona, Colorado, Delaware, Florida, Idaho, Illinois, Iowa, Mississippi, Missouri, Montana, Nevada, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming.  See State Post-Conviction Remedies at 120-121.

[298] See In re Ronald E., 19 Cal.3d 315, 322, n.3, 137 Cal.Rptr. 781, 785 n.3 (1977) (petitioner should have alleged s/he was unaware of the violation until after the time to appeal had expired).

[299] Rules Governing Section 2254 Cases in the United States District Courts, Rule 9(a).

[300] Wardius v. Oregon, 412 U.S. 470, 472, 474 n.6 (1973) (“Any criminal procedures that provide ‘nonreciprocal benefits to the State’ in regard to the investigation, preservation, and presentation of its evidentiary case should be constitutionally assailable ‘when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial.’”); II A. Amsterdam, Trial Manual 5 for the Defense of Criminal Cases 212 (1989).

Updates

 

BIA

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL -- TIMELINESS - RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE
Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right granted him within a statutory period by unexplained or unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right.")

Second Circuit

POST CON RELIEF " CONVICTION " FINALITY " DIRECT APPEAL " PENDING APPEAL RENDERS A CONVICTION NONFINAL, SO IT CANNOT BE A BASIS FOR DEPORTATION IN IMMIGRATION PROCEEDINGS
Walcott v. Chertoff, 517 F.3d 149, 155 (2d Cir. 2008) (pendency of a direct appeal from a criminal conviction renders the conviction nonfinal and suspends an aliens deportability.)

Ninth Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE - REMEDY - RETURN TO PRE-ERROR STAGE OF PROCEEDINGS
Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding).
http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf

Lower Courts of Ninth Circuit

TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF - OREGON
Benitez-Chacon v. State of Oregon, 178 Or. App. 352 (2001) (petition for post conviction relief subject to two year statute of limitations running from date of final judgment).

Other

POST CON RELIEF " DIRECT APPEAL " MOOTNESS " DEPORTATION DURING APPEAL DOES NOT MOOT OUT THE APPEAL
People v. Ventura, 17 N.Y. 3d 675 (App.Ct. Oct. 25, 2011) (it is improper to dismiss a criminal appeal solely because the appellant was deported while the appeal was pending, since the appellants defendants did not voluntarily abscond[], forfeiting their right to appeal.: Ventura and Gardner were involuntarily removed from the country and their extrication lacked the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings.).
POST CON RELIEF " TEXAS " HABEAS CORPUS " LACHES
State v. Golding, ___ Tex. App. ___, ___ S.W.2d ___ (1st Dist. Ct. App. May 12, 2011) (To bar relief based on laches, the State had the burden to (1) make a particularized showing of prejudice to its ability to respond to the allegations in Goldings application, (2) show that the prejudice was caused by Golding having filed a late petition, and (3) show that Golding did not act with reasonable diligence as a matter of law: The record likewise supports the trial courts finding that Golding used diligence in applying for the writ. The time lapse was not an unexplained delay; Golding applied for habeas relief soon after the Supreme Court handed down its decision in Padilla.); see Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999).
POST CON RELIEF " OREGON " STATUTE OF LIMITATIONS " PADILLA CLAIMS " PRACTICE ADVISORY
Counsel can argue that the Oregon two-year statute of limitations for post-conviction relief does not bar a claim of ineffective assistance of counsel under Padilla v. Kentucky, because that decision began a new statute. The argument is that no one would have known to file such a PCR claim based on reading federal law until the Padilla decision itself was decided on March 31, 2011. These claims must be filed on or before March 20, 2012, to take advantage of this argument. Thanks to Brian P. Conry.

 

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