Tooby's California Post-Conviction Relief for Immigrants

A conviction is void where the charging paper plainly fails to allege an act made criminal by federal law,[491] or if the statute defining the offense is unconstitutional.[492]  These claims are not waived by a guilty plea.[493]

            The United States Supreme Court overruled prior law, and held that defects in the indictment, such as failure to state an offense, do not deprive the court of jurisdiction over the case.[494]

[491] E.g., United States v. Cuch, 79 F.3d 987 (10th Cir. 1996)(claim that federal court had no jurisdiction because offense did not occur in Indian country, and therefore occurred at a place over which the federal government lacked jurisdiction); Standing Bear v. United States, 68 F.3d 271 (8th Cir. 1995); Frank v. United States, 914 F.2d 828 (7th Cir. 1990)(custody resulting from indictment that fails to state an offense violates the laws of the United States).

[492] E.g., Sunal v. Large, 332 U.S. 174 (1947); Baender v. Barnett, 255 U.S. 224 (1921); Ex parte Siebold, 100 U.S. 371 (1880).

[493] Haring v. Prosise, 462 U.S. 306 (1983); D. Wilkes, supra, at § § 4-13 and 4-14.

[494]  United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (failure to allege drug quantity in indictment did not deprive court of jurisdiction to convict).