Post-Conviction Relief for Immigrants

Appointment of counsel is possible in federal writ proceedings under the Criminal Justice Act, 18 U.S.C. § 3006A.  There is no absolute right to the appointment of counsel in federal habeas corpus as a general matter, but rather the court employs an interests of justice standard.[21]  If, however, the court orders an evidentiary hearing, counsel must be appointed for a petitioner who qualifies under 18 U.S.C. § 3006A(g).[22] 

            Many states, such as California, also provide that a legally indigent petitioner who is unable to retain counsel is entitled to counsel appointed by the court in extraordinary writ proceedings.[23]  Equal protection, which applies “whenever a state affords a direct or collateral remedy to attack a criminal conviction”[24] requires that:

counsel must also be provided for an indigent (1) who brings a collateral attack on his conviction, once he has made “adequately detailed factual allegations stating a prima facie case” (People v. Shipman, supra, 62 Cal.2d at p. 232, 42 Cal.Rptr. at p. 5, 397 P.2d at p. 997), or (2) who appeals from the denial of such a collateral attack, where such an appeal is permitted by law.[25]

An indigent habeas petitioner is also specifically entitled to court‑appointed counsel, at least after an order to show cause has been issued.[26]

[21] See 18 U.S.C. § 3006A(a)(2)(B). 

[22] See Rules Governing § 2245 and § 2255 Cases, Rule 8(c).

[23] People v. Shipman, 62 Cal.2d 226, 231, 42 Cal.Rptr. 1, 4 (1965) (right to appointed counsel on coram nobis); see also Lane v. Brown, 372 U.S. 477, 484 (1963).

[24] People v. Shipman, 62 Cal.2d 226, 231 (1965).

[25] People v. Barton, 21 Cal.3d 513, 146 Cal.Rptr. 727, 730 n.3 (1978).

[26] Charlton v. Superior Court, 93 Cal.App.3d 858, 156 Cal.Rptr. 107, 109 (1979).