Post-Conviction Relief for Immigrants

            A conviction is void where the charging paper plainly fails to allege an act made criminal by law,[485] or the statute defining the offense is unconstitutional.[486]  These claims are not waived by a guilty plea.[487]  The United States Supreme Court has held, however, that the omission of an essential element from an indictment does not constitute a jurisdictional defect.[488]

[485] E.g., United States v. Cuch, 79 F.3d 987 (10th Cir. 1996) (claim that federal court had no jurisdiction because offense did not occur in Indian country, and therefore occurred at a place over which the federal government lacked jurisdiction); Standing Bear v. United States, 68 F.3d 271 (8th Cir. 1995); Frank v. United States, 914 F.2d 828 (7th Cir. 1990) (custody resulting from indictment that fails to state an offense violates the laws of the United States).  See § 6.55, infra.

[486] E.g., Sunal v. Large, 332 U.S. 174 (1947); Baender v. Barnett, 255 U.S. 224 (1921); Ex parte Siebold, 100 U.S. 371 (1880); Humanitarian Law Project v. U.S. Department of Justice, ___ F.3d ___ (9th Cir. December 3, 2003) (18 U.S.C. § 2339B, prohibiting providing “training” and “personnel” to a listed terrorist organization, held impermissibly overbroad, and void for vagueness in violation of the First and Fifth Amendments).

[487] Haring v. Prosise, 462 U.S. 306 (1983); Federal Postconviction Remedies and Relief 172 (2003), supra, at § § 4-13 and 4-14.

[488] United States v. Cotton, 535 U.S. 625 (May 20, 2002) (omission from federal indictment of fact enhancing statutory maximum sentence (here quantity of drugs) does not justify court of appeals vacation of enhanced sentence, even where defendant did not object in trial court; plain error test applies; indictment defects do not deprive court of power to adjudicate a case); see United States v. Godinez-Rabadan, 289 F.3d 630 (9th Cir. May 3, 2002) (for 18 U.S.C. § 1326(a) charge, the specific date a noncitizen was “found in” the United States is not an essential element of the offense and therefore need not be indicated in the indictment.  Issue of whether indictment is constitutionally sufficient is jurisdictional question and may be raised for the first time on appeal).