Criminal Defense of Immigrants


§ 10.36 (C)

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(C)  Invalidating a Prior Sentence.  Invalid prior convictions may not be considered in sentencing.  See § 10.36(A), supra.  To obtain a new sentence, the defendant must establish (a) the prior conviction is constitutionally invalid, and (b) the sentencing judge relied upon it in passing the original sentence.[114]  A prior sentence, however, that is altered for any reason at all, even a discretionary immigration reason, is eliminated for immigration purposes in favor of the new sentence.  See § 11.10, infra. 


The United States Supreme Court has held that a federal defendant may not raise a claim that a prior state-court conviction is constitutionally invalid (except upon a claim of complete denial of counsel, rather than ineffective assistance), during federal sentencing pursuant to a recidivist sentence statute, since Congress did not provide for that procedure.  If the defendant uses a separate post-conviction remedy and obtains an order vacating the conviction, however, s/he may apply in federal court for resentencing as though the unconstitutional conviction did not exist.[115]

Some states, however, decline to apply recent federal procedural limitations on the use of habeas corpus in this context.  Under California law, for example, habeas corpus is an appropriate means of challenging the constitutionality of a prior conviction being used to enhance a current sentence.[116]  Moreover, although Lackawanna v. Coss[117] held that doing the same on federal habeas review of a state conviction was not permitted, it did so as a matter of federal procedure.  The California Supreme Court has rejected the importation of such limitations into California post-conviction procedures.[118]  Other states may do likewise.[119]


(1)  Sentence Based on Prior Resulting From Denial of Counsel.  A sentence based on prior criminal convictions that were obtained in violation of the right to counsel can be invalidated on post-conviction relief.[120]  Custis v. United States[121] does not contradict this.  Common situations in which the right to counsel has been denied include invalid waivers of the right to counsel.  A prior conviction resulting from an uncounseled guilty plea for which there was an invalid waiver of counsel may not be used to enhance a later offense where the prior conviction resulted in incarceration.[122]


(2)  Sentence Based on Prior Conviction Resulting From Denial of Other Rights.  Post-conviction relief may be used to attack a sentence enhanced by convictions that are unconstitutional on grounds other than complete denial of the right to counsel.  Custis restricts how the defense can establish this, but does not undercut the right to have a sentence vacated if a proper post-conviction proceeding establishes that the prior conviction violated the Constitution.[123]


(3)  Foreign Convictions.  A foreign conviction cannot be used to enhance sentence if the foreign conviction failed to meet standards of fundamental fairness.[124]


(4)  Federal Sentences.  A prior conviction held invalid on nonconstitutional grounds may be used to enhance a federal sentence.[125]

[114] United States v. Ellis, 949 F.2d 952 (8th Cir. 1991); United States v. Sammons, 918 F.2d 592 (6th Cir. 1990); Moore v. Jarvis, 885 F.2d 1565 (11th Cir. 1989); Bourgeois v. Whitley, 784 F.2d 718, 721 (5th Cir. 1986); United States v. Laviguer, 801 F.Supp. 382 (D. Ore. 1992).

[115] Custis v. United States, 511 U.S. 485 (1994); see Lackawanna v. Coss, 532 U.S. 394 (2001) (held: (1) state sentence currently being served, which was enhanced by an allegedly unconstitutional prior conviction for which the sentence had fully expired, satisfied the “in custody” requirement for federal habeas jurisdiction; (2) relief is generally unavailable to a state prisoner through a petition for a writ of habeas corpus when the prisoner challenges a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody; and (3) exception exists where there was a failure to appoint counsel in violation of the Sixth Amendment in connection with the prior conviction). “In Daniels v. United States, 532 U.S. 374 (2001), this Court held that a federal prisoner who has failed to pursue available remedies to challenge a prior conviction (or has done so unsuccessfully) may not collaterally attack that conviction through a motion under 28 U.S.C. § 2255 directed at the enhanced federal sentence. That holding is now extended to cover § 2254 petitions directed at enhanced state sentences. The considerations on which the Daniels holding was grounded — finality of convictions and ease of administration — are equally present in the § 2254 context. See Daniels, post, at 379-380, 121 S.Ct. 1578.  Pp. 1573-1574.”  Id. at 394.

[116] E.g., In re Johnson, 3 Cal.3d 404 (1970); In re Woods, 64 Cal.2d 3 (1966); see also People v. Garcia, 14 Cal.4th 953, 965 (1997) (holding that a prior conviction cannot be attacked, based on a claim of ineffective counsel, through a motion to strike filed in the current complaint — the proper vehicle is habeas corpus).

[117] Lackawanna v. Coss, 532 U.S. 394 (2001).

[118] See People v. Allen, 21 Cal.4th 424, 427 (1999); People v. Horton, 11 Cal. 4th 1068 (1995) (both refusing to apply Custis to limit state collateral attacks on prior convictions).

[119] See D. Wilkes, State Post-Conviction Remedies and Relief Handbook (2006).

[120] United States v. Tucker, 404 U.S. 443 (1972); Burgett v. Texas, 389 U.S. 109 (1967).

[121] Custis v. United States, 511 U.S. 485 (1994).

[122] See Baldasar v. Illinois, 446 U.S. 222 (1980); Nichols v. United States, 511 U.S. 738 (1994).

[123] Garcia v. Superior Court, 14 Cal.4th 953, 962 (1997); People v. Allen, 21 Cal.4th 424, 432 (1999); see Nichols v. United States, 511 U.S. 738, 765 (dis. opn. of Ginsberg, J.) (the issue in Custis “was where, not whether, the defendant could attack a prior conviction for constitutional infirmity”).)

[124] United States v. Moskovits, 784 F. Supp. 193, 197 (E.D. Pa. 1992) (errors in prior conviction rendered in Mexico and relied upon by the sentencing court required a new sentence); see United States v. Fleishman, 684 F.2d 1329, 1346 (9th Cir.), cert. denied, 459 U.S. 1044 (1982).

[125] United States v. Ullyses-Salazar, 28 F.3d 932 (9th Cir. June 20, 1994), cert. denied, 514 U.S. 1020 (1995), overruled by United States v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir. Sept. 24, 1996) (where prior state court convictions were obtained in error, but such error was not unconstitutional, the convictions can be used as prior convictions for federal sentencing criminal history score).