Tooby's California Post-Conviction Relief for Immigrants

For both state and federal habeas corpus actions, there are generally four requirements that must be met:

(1) The petition must be timely filed.

(2) The petitioner must be in actual or constructive custody.

(3) The petitioner must show that other remedies such as direct appeal are inadequate or were exhausted, or, if they were not exhausted, that special circumstances exist justifying the issuance of the writ.[143]

            An extraordinary writ may not be used to raise a claim that could have been raised on direct appeal, but if new facts are presented in the writ proceeding that were not present in the record of the original conviction, the issue could not adequately have been raised on direct appeal because the necessary facts were not available.[144]  So long as fresh facts are presented, beyond those available in the original record of the judgment, no court should hold the writ barred by the rule against deliberately bypassing direct appeal.  Denial of an important constitutional right such as effective assistance of counsel is a claim that generally need not be raised on direct appeal because it normally involves facts outside the record of conviction.[145] 

(4)  The act of the court or government challenged by the petition must have constituted a fundamental constitutional or jurisdictional error.

            “Jurisdictional” errors supporting issuance of the writ have been found where the accusatory pleading or commitment was defective, material false evidence was introduced against the petitioner, the guilty plea was entered under a misapprehension of law, improprieties occurred regarding the granting or revoking of probation or parole, or the sentence imposed was unauthorized, excessive, or unconstitutional.[146]  For a selective survey of grounds attacking the validity of a conviction resting on a plea of guilty or no contest, that can be raised in a habeas corpus petition.  See Chapter 7, infra.

            Successive Petitions.   Successive petitions may not be filed in state or federal habeas proceedings.  Penal Code § 1475 provides, in part, that once a writ has been denied, a successive petition may not be made in the same court on any grounds previously raised, nor on any grounds that could have been raised. 

            Federal law appears to be in accord.  As Witkin summarizes it:  "A claim presented in a second or successive petition for federal habeas corpus must be dismissed, even if the claim has not been presented before."  However, there are exceptions to this rule, even in federal court.  For example, where a defendant presents an unexhausted claim in a federal habeas petition, this claim must be dismissed but the petitioner is allowed to file a new habeas petition on the same issue once his/her state remedies are exhausted.

            In California state courts, the controlling case is In re Clark.[147]  The Clark court launched a very long and detailed attack on "piecemeal" litigation.  Among other things, it stated that the filing of successive petitions, whether based on the same grounds or new grounds, is an abuse of the writ process.  To obtain consideration on the merits of a successive petition, a petitioner must adequately explain the failure to present the claim earlier and must justify the piecemeal presentation of the claim.

[143] For discussion of the requirement of exhaustion of state court remedies applicable to federal habeas corpus actions, see generally J. Liebman, Federal Habeas Corpus Practice and Procedure, Chapter 23 (The Michie Co. 1988).  Exhaustion requires fairly presenting each constitutional claim to the state’s highest court, even if that procedure is one of discretionary review.  O'Sullivan v. Boerkel, 526 U.S. 838, 119 S. Ct. 1728 (1999).  A federal habeas corpus action that contains both exhausted and unexhausted claims, a so-called “mixed petition,” either must be dismissed without prejudice to allow for complete exhaustion, or petitioner must delete any unexhausted claims and proceed only with those properly presented to the state’s highest court.  Rose v. Lundy, 455 U.S. 509, 515 (1982).

[144] People v. Gallardo (1999) 77 Cal.App.4th 971.

[145] People v. Gallardo (1999) 77 Cal.App.4th 971; In re Lopez (1970) 2 Cal.3d 141, 151, 84 Cal.Rptr. 361.

[146] For additional jurisdiction bases, see Erwin et al., California Criminal Defense Practice, supra, at § 102.2(2)(b).

[147] In re Clark (1993) 5 Cal.4th 750.