Criminal Defense of Immigrants


§ 10.36 (B)

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(B)  Grounds. Counsel may wish to use the recidivist sentencing proceeding as an opportunity collaterally to attack the legal validity of a prior conviction or sentence, on grounds upon which they might be challenged by other collateral proceedings, such as habeas corpus or coram nobis.  The sentencing court must allow a federal constitutional attack upon the legal validity of a prior conviction where the sentencing statutes so provide.[111]  State law is often unclear as to whether the sentencing court will allow a state collateral attack on a prior conviction or sentence.  Older prior convictions, and minor prior convictions in many jurisdictions, should be checked to determine whether counsel was appointed or legally waived.[112]  There are many grounds on which the legal validity of prior convictions based on a guilty plea may be attacked.  See § 11.70, infra.[113]

[111] See Burgett v. Texas, 389 U.S. 109 (1967); Baldasar v. Illinois, 446 U.S. 222 (1980); United States v. Addonizio, 442 U.S. 178, 187 (1979) (dictum); Lewis v. United States, 445 U.S. 55, 60, 66-67 (1980) (dictum).

[112] Carnley v. Cochran, 369 U.S. 506 (1962).

[113] N. Tooby, Post-Conviction Relief for Immigrants, Chapter 6 (2004).