Criminal Defense of Immigrants


§ 11.35 b. Matching the Vehicle to the Ground of Legal Invalidity

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Some forms of post-conviction relief are general in nature, such as habeas corpus, and can be used to raise virtually any ground of legal invalidity.  Other forms of post-conviction relief, such as a statutory motion to vacate a conviction for violation of a state advisal requirement, are limited to the specific statutory grounds.[293]  In California, habeas corpus may be used to raise a claim of ineffective assistance of counsel, but coram nobis may not.


                It is essential to ensure that the chosen vehicle is an appropriate way to raise the grounds of legal invalidity present in your case, and that the ground of legal invalidity may be raised by the chosen vehicle.  For example, in California, habeas corpus requires actual or constructive custody.  Habeas corpus has been held to be an appropriate way of raising the claim of ineffective assistance of counsel.  If custody has expired, habeas cannot be used.  In California, coram nobis may not be used to raise ineffective assistance of counsel.  It may be necessary to transform a claim of ineffective assistance of counsel into a coram nobis claim that “no one knew that the conviction would trigger mandatory immigration consequences.”

[293] See, e.g., California Penal Code § 1016.5.