Criminal Defense of Immigrants


§ 10.36 (A)

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(A)  Procedures to Challenge Validity of Prior Conviction or Sentence.  Defense counsel may wish to bring a variety of post-conviction attacks against a prior conviction or sentence as part of sentence proceedings in the current criminal case.  For example, a motion to strike a prior conviction may be appropriate.[108]  Counsel may wish to bring a motion to modify a prior sentence, or a petition for some form of state rehabilitative relief, notwithstanding the pendency of the current criminal case. 


                Defense counsel can challenge the constitutional validity of any prior conviction that is laid before the judge for consideration in sentencing.[109]  There may be no point to doing so, however, when the court is merely considering the conviction generally as a discretionary factor, rather than to form the basis for applying recidivist sentencing provisions, since the court may ignore the unconstitutionality of the conviction in making a discretionary decision.  Counsel may therefore want to reserve constitutional challenges to prior convictions unless planning an appeal. “In this situation constitutional challenges to a prior that are wrongly rejected by the sentencing judge may lay the foundation for appellate reversal under the doctrine that even appellate courts which do not review sentences generally (as most do not) must set aside a sentence based upon illegal procedures or expressed improper considerations.”[110]

[108] N. Tooby, Post-Conviction Relief for Immigrants § 7.115 (2004). 

[109] United States v. Tucker, 404 U.S. 443 (1972); see United States v. Addon­izio, 442 U.S. 178, 187 (1979) (dictum); Lewis v. United States, 445 U.S. 55, 60, 66-67 (1980) (dictum); cf. Burgett v. Texas, 389 U.S. 109 (1967); Baldasar v. Illinois, 446 U.S. 222 (1980); Johnson v. Mississippi, 108 S.Ct. 1981 (1988).

[110] A. Amsterdam, 3 Trial Manual for the Defense of Criminal Cases [465] (1989), citing United States v. Tucker, 404 U.S. 443 (1972); United States v. Wiley, 267 F.2d 453 (7th Cir. 1959).