Tooby's California Post-Conviction Relief for Immigrants
- §6.1 I. Introduction
- §6.2 A. Introduction
- §6.3 B. Overview of Forms of Relief and Immigration Effect
- §6.4 II. Immigration Consequences of an Order Vacating a Conviction: Obtaining an Order the Immigration Authorities Will Respect
- §6.5 A. A Legally Invalid Conviction Cannot Trigger Immigration Consequences
- §6.6 1. The Long-Standing Rule
- §6.7 2. The New IIRAIRA Definition of Conviction Did Not Change the Basic Rule
- §6.8 B. An Order Vacating a Conviction as Legally Invalid Eliminates the Conviction for All Immigration Purposes
- §6.9 C. Reopening Removal Proceedings After a Conviction Has Been Vacated
- §6.10 D. A Conviction Vacated on Purely Humanitarian Grounds, or Under a State Rehabilitative Statute, May Continue to Exist for Immigration Purposes
- §6.11 1. Humanitarian Grounds
- §6.12 2. State Rehabilitative Statutes
- §6.13 E. The DHS Cannot Collaterally Attack, in Immigration Court, the Validity of a Criminal Court Order Vacating a Conviction
- §6.14 F. The DHS Argument That An Order Vacating a Conviction is Beyond the Jurisdiction of the Criminal Court and Should Not Be Honored
- §6.15 III. Motion to Withdraw Guilty Plea Under Penal Code 1018
- §6.16 IV. Direct Appeal from Conviction
- §6.17 A. Requirements for Felony Appeals
- §6.18 B. Requirements for Misdemeanor Appeals
- §6.19 C. Procedure
- §6.20 1. Finality of Decision
- §6.21 2. Filing a Late Notice of Appeal
- §6.22 3. Attacking a Waiver of Appeal
- §6.23 4. Negotiating a Better Result on Appeal
- §6.24 V. Writ of Habeas Corpus
- §6.25 A. General Requirements for Issuance of the Writ
- §6.26 B. Federal Habeas Corpus . Generally
- §6.27 C. The Petition Must Be Timely Filed
- §6.28 1. Federal Habeas Corpus and the AEDPA Statute of Limitations
- §6.29 a. The Starting Date
- §6.30 b. Statutory Tolling
- §6.31 c. Equitable Tolling
- §6.32 2. Attacking Federal Convictions
- §6.33 3. California Habeas Corpus
- §6.34 D. The Requirement of Custody
- §6.35 1. Registration Requirements as Custody
- §6.36 2. Immigration Custody Insufficient
- §6.37 3. The Future
- §6.38 4. Case Not Moot So Long As Collateral Consequences, Such as Immigration Consequences, Damage the Defendant
- §6.39 E. Procedure
- §6.40 F. Raising Habeas Issues in Court of Appeal
- §6.41 VI. Petition for Writ of Error Coram Nobis
- §6.42 A. Procedure
- §6.43 B. Appeal from Denial of Coram Nobis
- §6.44 VII. Nonstatutory Motion to Vacate on Constitutional Grounds
- §6.45 A. A Nonstatutory Motion to Vacate is a Conceptually Different Vehicle for Post-Conviction Relief than Coram Nobis
- §6.46 B. The Trial Court Retains the Inherent Authority to Grant a Post-Judgment Motion to Vacate a Guilty Plea Based on Ineffective Assistance of Counsel
- §6.47 C. Procedure for Motions To Vacate In General
- §6.48 D. The Denial of a Nonstatutory Motion to Vacate Is Appealable Where the Basis of the Motion Raises Matters Outside the Record of the Case
- §6.49 VIII. Statutory Motion to Vacate Based on Judge's Failure to Provide 1016.5 Warning of Possible Adverse Immigration Consequences
- §6.50 A. A Motion to Vacate is the Proper Manner by Which to Raise a Violation of this Statute
- §6.51 B. Timeliness of Motion to Vacate
- §6.52 C. Procedure for Motions To Vacate In General
- §6.53 1. The Court May Decide a Motion Without Hearing Live Testimony
- §6.54 2. Non-Party Declarations May Not Be Excluded for Lack of Cross-Examination
- §6.55 3. Defendant's Declaration Should Not Be Excluded for Lack of Cross-Examination Unless Court Grants Hearing With Live Testimony
- §6.56 D. Proving Citizenship
- §6.57 IX. Attacking Misdemeanor Convictions
- §6.58 X. Dismissals Under Penal Code 1385
- §6.59 A. Immigration Effects of Dismissal
- §6.60 1. Dismissal of Conviction
- §6.61 2. Dismissal of Sentence Enhancement
- §6.62 3. Dismissal of Sentence
- §6.63 4. Dismissal of Language From Charge
- §6.64 B. Grounds for Dismissal
- §6.65 1. Interests of Justice
- §6.66 2. Grounds of Legal Invalidity
- §6.67 3. Equitable Grounds
- §6.68 4. Proper Grounds
- §6.69 5. Improper Grounds
- §6.70 6. Abuse of Discretion
- §6.71 C. Procedural Requirements
- §6.72 1. Who May Make Motion
- §6.73 2. Timing of Dismissal
- §6.74 3. Statement of Reasons
- §6.75 4. Dismissal as Bar
- §6.76 5. Appellate Review
§ 6.47 (B)
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(B) Non-party declarations may not be excluded for lack of cross-examination. The prosecution cannot exclude from evidence the declaration of a witness who is not a party (such as immigration counsel) in support of a motion to withdraw a plea under Penal Code § 1016.5.
