A writ of habeas corpus may be sought in state court collaterally to attack a criminal conviction, judgment, or sentence.  See Chapter 5, supra.  If the conviction or sentence is vacated as legally invalid through the use of habeas corpus, it may not be used at all against the defendant for immigration purposes.

 

The basic requirements for issuance of the writ are as follows:

 

(1) The petitioner must be in custody, actual or constructive.  This means s/he must at least be on probation or parole on the day the petition is filed, or subject to some kind of restraint sufficient to confer habeas jurisdiction on the court.

 

(2) The petition must raise one or more claims of fundamental jurisdictional or constitutional error in the sentence.

 

(3) The petitioner must have exhausted all available administrative remedies.  The habeas corpus petition may not be used as a substitute to raise issues that could have been raised on direct appeal.

 

(4) The issues must not be moot.

 

(5) There are limitations on successive or untimely petitions.[175]

 

            For a more detailed discussion of the procedural requirements and practical considerations of habeas corpus actions, see Chapter 5, supra.

 

Habeas corpus is the primary means by which to raise errors of constitutional or jurisdictional dimension.  For discussion of the grounds to vacate sentences, many of which are properly raised in a habeas corpus petition, see § § 7.65, et seq., infra. 

[175] California Criminal Defense Practice, § 102.10[2].

First Circuit

POST CON RELIEF " FEDERAL " VEHICLES " MOTION TO VACATE SENTENCE UNDER 28 U.S.C. 2255 " SUCCESSIVE MOTION BAR
Cuevas v. Grondolsky, ___ F.3d ___, 2012 WL 265842 (1st Cir. Jan. 31, 2012) (habeas corpus petition under 28 U.S.C. 2241 challenging federal drug conspiracy conviction was denied, since relief available on motion to vacate sentence extended to alleged violations of extradition treaty, precluding successive habeas petition alleging violation of extradition treaty as attempt to circumvent limits on multiple motions to vacate sentences).