The most common forms of post-conviction relief capable of vacating or modifying a criminal sentence include:

 

(1)  Direct appeal from the sentence (see § 7.56, infra),

(2)  Petition for a writ of habeas corpus (see § 7.57, infra),

(3)  Non-statutory motion to vacate the sentence (see § 7.58, infra),

(4)  Petition for a writ of coram nobis (see § 7.59, infra),

(5)  Motion to correct void sentence (see § 7.60, infra),

(6)  Motion to recall sentence (see § 7.61, infra),

(7)  Motion to modify the conditions of probation (see § 7.62, infra), and

(8)  Motion to shorten probation or parole (see § § 7.63-7.64 infra).

 

            The discussion here will not attempt to discuss each of these vehicles at length.  A rich literature is already available concerning post-conviction procedure and practice, including Chapter 5, supra, regarding post-conviction vehicles to vacate criminal convictions.[1]  The brief discussion here will focus on the basic practical and procedural requirements of each form of relief useful for vacating or reducing a sentence, and any features of particular interest to counsel attempting to vacate or reduce criminal sentences for immigration purposes.

 

Certain important immigration consequences of a conviction can also be changed by means of a motion to reduce the level of the offense, from felony to misdemeanor, or from misdemeanor to infraction.  These issues are discussed in § § 7.121, et seq., infra.

[1] See also Bibliography, http://www.CriminalAndImmigrationLaw.com.

Ninth Circuit

POST CON RELIEF " FEDERAL
United States v. Austin, 676 F.3d 924 (9th Cir. Apr. 2012) (reversing order granting a motion to reduce the sentence under 18 U.S.C. 3582(c)(2), where district court lacked jurisdiction under that statute to modify because the sentence was based on a binding Federal Rule of Criminal Procedure 11(c)(1)(C) agreement, rather than a Sentencing Guidelines range).

POST CON RELIEF " FEDERAL " SENTENCE " MOTION TO REDUCE SENTENCE FOR SUBSTANTIAL ASSISTANCE " RULE 35
United States v. Tadio, ___ F.3d ___, 2011 WL 5839660 (9th Cir. Nov. 21, 2011) (affirming reduced sentence under F.R. Crim. P. rule 35(b); court properly considered factors other than assistance, including those listed in 18 U.S.C. 3553(a), once court determined that the defendant provided substantial assistance to the government).

POST CON RELIEF " FEDERAL " SENTENCE " MOTION TO REDUCE SENTENCE UNDER 18 U.S.C. 3582(c)(2)
United States v. Sykes, 658 F.3d 1140 (9th Cir. Sept. 26, 2011) (affirming denial of motion to reduce sentence pursuant to 18 U.S.C. 3582(c)(2), based on the claim the district court's modification of his sentence to the 120"month mandatory minimum term pursuant to 21 U.S.C. 841(b)(1)(A) constituted the application of a new sentence, in violation of Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010), because it concluded that the district court's application of the 120"month mandatory minimum term pursuant to 18 U.S.C. 841(b)(1)(A) did not constitute the imposition of a new sentence).

Eleventh Circuit

POST CON RELIEF " MOTION TO VACATE SENTENCE
Hernandez v. United States, 778 F.3d 1230 (11th Cir. Mar. 2, 2015) (reversing district court denial of an evidentiary hearing on a motion to vacate sentence under 28 U.S.C. 2255 based on ineffective assistance of counsel, since the motion alleged facts that, if true, would entitle the defendant to relief, but a district court need not hold an evidentiary hearing if the allegations are patently frivolous, based upon unsupported generalizations, or affirmatively contradicted by the record).