Criminal Defense of Immigrants

Chapter

§ 11.70 B. Grounds

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Geography of the Field. The great majority of criminal convictions occurs in state courts. By contrast, relatively few convictions occur in federal courts. Generally speaking, in federal courts, court and counsel take greater care to follow the procedures required to produce a legally valid conviction, although even there, in busier courts, in more minor cases, mass-production techniques produce frequent errors giving rise to grounds of legal invalidity.

The majority of criminal convictions in all courts follow pleas of guilty or no contest (which have the same effect). Relatively few criminal convictions occur as a result of jury trials, and even fewer as a result of court trials. It is usually quite a bit more work and more difficult to set aside a conviction that flowed from a trial than one resulting from a plea by the defendant. On the other hand, a guilty plea waives all errors in the proceedings other than constitutional and jurisdictional defects, and in California practice, the denial of a motion to suppress evidence.[343] Thus, the possible claims for relief following a guilty plea are more limited than those following a trial. Potential grounds to vacate a conviction following a trial are too numerous for complete coverage here. The focus is therefore on grounds to invalidate guilty pleas.

What follows is a checklist of grounds for vacating guilty pleas.[344] For the most part these grounds are based on federal constitutional rights, and should be useful in all United States jurisdictions. They eliminate convictions for immigration purposes. See § 11.4, supra.

[343] California Penal Code § 1237.5.

[344] For other collections of grounds on which habeas corpus has been granted, see 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure 7-13 (1993 Cum. Supp.); Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U.Pa.L.Rev. 460, 481-88 (1960); Wells, Habeas Corpus and Freedom of Speech, 1978 Duke L.J. 1307, 1349-51; D. Wilkes, Federal Post-conviction Remedies and Relief § § 4-4 to 4-9 (2003).

Updates

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
Medellin v. Texas, ___ U.S. ___, 128 S.Ct. 1346 (Mar. 25, 2008) (neither an International Court of Justice case, Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12, nor a memorandum issued by the President of the United States constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions, affirming dismissal of a habeas petition in a death penalty case raising a claim that petitioner was not informed of his Vienna Convention right to notify the Mexican consulate of his detention).

POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTES
As of March, 2008, 28 states have adopted court rules or statutes that require the court, at plea, to advise the defendant concerning possible immigration consequences. Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule 17.2(f) (2004); Ark. Rules of Court, rule 17.2(f)(2004); Cal. Penal Code 1016.5 (West 1995); Conn. Gen. Stat. Ann. 54-1j (West 1994); D.C. Code Ann. 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. 17-7-93 (1997); Haw. Hawaii Stat. Ann. 802E(1), (2), (3) (West 1994); Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8 (2006); Iowa R. Crim. Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch. 278, 29D (West 1994); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. 46-12-210(1)(f) (1997); Neb. Rev. St. 29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim. Proc. Law 220.50 (7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. 15A-1022 (a)(7) (West 1994); Ohio Rev. Code Ann. 2943.031 (West 1989); Ore. Rev. Stat. 135.385 (2)(d) (1997); R.I. Gen. Laws 12-12-22 (West 2003); Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); 13 S.A. 6565; Wash. Rev. Code Ann. 10.40.200 (West 1995); Wis. Stat. 971.08(1)(c), (2) (West 1994).

Lower Courts of Eleventh Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - FAILURE TO ADVISE CONCERNING FOREIGN IMMIGRATION CONSEQUENCES
United States v. Ibekwe, 891 F. Supp. 587 (M.D. Fla. 1995) (defense counsel's failure to advise defendant before plea of adverse Nigerian immigration consequences of plea did not constitute ineffective assistance of counsel).