A writ of habeas corpus may be sought in state court collaterally to attack a criminal conviction, judgment, or sentence.  See Chapter 6, supra.[109]  If the conviction or sentence is vacated as legally invalid through use of habeas corpus, it may not be used at all against the defendant for immigration purposes.

 

The basic requirements for issuance of the writ are as follows:

 

(1) The petitioner must be in custody, actual or constructive.  This means s/he must at least be on probation or parole on the day the petition is filed.

 

(2) The petition must raise one or more claims of fundamental jurisdictional or constitutional error in the sentence.

 

(3) The petitioner must have exhausted all available administrative remedies.  The habeas corpus petition may not be used as a substitute to raise issues that could have been raised on direct appeal.

 

(4) The issues must not be moot.

 

(5) There are limitations on successive or untimely petitions.[110]

 

            For a more detailed discussion of the procedural requirements and practical considerations of habeas corpus actions, see Chapter 6, supra.

 

Habeas corpus is the primary means by which to raise errors of constitutional or jurisdictional dimension.  For discussion of the grounds to vacate sentences, many of which are properly raised in a habeas corpus petition, see § § 8.38, et seq., infra.

[109] Penal Code § § 1473‑1508; see, e.g., In re Hochberg (1970) 2 Cal.2d 870, 879, 87 Cal.Rptr. 681 (new trial); In re Culberth (1976) 17 Cal.3d 330, 335, 130 Cal.Rptr. 719 (sentencing error).   See also Cal. Rules of Court 260, concerning habeas corpus procedure in superior courts.

[110] 5 California Criminal Defense Practice, supra, § 102.10[2].

Other

CAL POST CON " HABEAS " CURRENT CUSTODY GIVES JURISDICTION TO ATTACK EXPIRED CUSTODY PRIOR CONVICTION ON WHICH CURRENT CUSTODY DEPENDS
Custody for habeas on the basis of incarceration for failure to register A habeas petitioner incarcerated for failing to comply with a state sex offender registration law is in custody for the purpose of challenging the prior conviction that led the imposition of the registration requirement. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). A petitioner filing a habeas claim on an expired prior conviction must show that he or she bore no responsibility for the delay in filing. Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403 (2001). I. Custody on the basis of incarceration for failure to register a. Custody For a federal court to have jurisdiction over a habeas petition filed by a state prisoner, the petitioner must be in custody. See, e.g., Brock v. Weston, 31 F.3d 887, 888 (9th Cir. 1994.) In general, a states sexual offender registration laws do not render a habeas petitioner in custody because they are a collateral consequence of conviction that do not impose a severe restraint on an individuals liberty. In re Stier, 152 Cal.App.4th 63, 83 (2007) (citing Resendiz v. Kovensky 416 F.3d 952, 959 (9th Cir. 2005); see, e.g., McNab v. Kok, 170 F.3d 1246 (9th Cir. 1999); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1999.) Though merely being subject to the sex offender registry requirement alone does not satisfy custody for the purposes of habeas relief, the Ninth Circuit has held that incarceration for failure to register as a sex offender does establish custody for 2254 and 2255 habeas relief from the initial conviction that led to the registration requirement. Zichko, 247 F.3d at 1020. In Zichko v. Idaho, the petitioner pleaded guilty to rape and was sentenced to ten years in prison, but served seven. Two years after he was released, he was incarcerated for failing to register as a sex offender. 247 F.3d 1015, 1019 (9th Cir. 2001). He subsequently filed a habeas petition with the federal district court, alleging, inter alia, ineffective assistance of counsel in his rape case. His original sentence would have ended less than a month before he filed the habeas petition. The court ultimately denied the habeas petition on the grounds of state procedural default. Id. at 1021. But the Ninth Circuit first noted that, though the initial rape conviction had expired, Zichko was subject to the registration requirement only because of that initial conviction. Id. 1020. Accordingly, the court held that a habeas petitioner is in custody for the purposes of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction is a necessary predicate to the failure to register charge. Id. at 1019 (citing Brock v. Weston, 31 F.3d 887, 890 (9th Cir. 1994)). The court drew support for its reasoning from the well settled proposition that a habeas corpus petitioner meets the statutory in custody requirements when, at the time he files the petition [] . . . he is in custody pursuant to another conviction that is positively and demonstrably related to the conviction he attacks. Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir. 1985). See also Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394 (2001) (Lackawanna) (holding that petitioner was in custody for jurisdictional purposes because he alleged that the earlier, unconstitutional conviction had enhanced his later sentence); Brock v. Weston, 31 F.3d 887, 890 (9th Cir.1994) (holding that the habeas petitioner could challenge an earlier expired conviction while involuntarily committed for treatment as a violent sexual predator). Though California state cases have yet to issue holdings on the issue, the Supreme Court and Court of Appeals cases have made clear that custody for failure to register can be used to challenge the constitutionality of the original conviction. b. Timely challenge In federal habeas proceedings, the U.S. Supreme Court has held that if . . . a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant . . . may not collaterally attack his prior conviction through a habeas petition related to his current conviction. Lackawanna, 532 U.S. at 402 (quoting Daniels v. United States, 532 U.S. 374, 382 (2001)). Nevertheless, it is possible that, even if the petitioner satisfies the custody requirement, a court could determine that the petition is untimely raised and could decline to review it on the merits. In Lackawanna, though the petitioner was no longer serving the sentence imposed pursuant to his initial conviction, the Court found that the fact that the petitioners current sentence was enhanced by the allegedly unconstitutional prior conviction satisfied the in custody requirement for the purposes of section 2255 and 2254 habeas relief. Id. at 401-02. The Court went on to hold, however, that it would not review the merits of the petition, reasoning: [O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under 2254 on the ground that the prior conviction was unconstitutionally obtained. Id. at 403-04.

CAL POST CON " HABEAS " CURRENT CUSTODY GIVES JURISDICTION TO ATTACK EXPIRED CUSTODY PRIOR CONVICTION ON WHICH CURRENT CUSTODY DEPENDS
Custody for habeas on the basis of incarceration for failure to register A habeas petitioner incarcerated for failing to comply with a state sex offender registration law is in custody for the purpose of challenging the prior conviction that led the imposition of the registration requirement. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). A petitioner filing a habeas claim on an expired prior conviction must show that he or she bore no responsibility for the delay in filing. Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403 (2001). I. Custody on the basis of incarceration for failure to register a. Custody For a federal court to have jurisdiction over a habeas petition filed by a state prisoner, the petitioner must be in custody. See, e.g., Brock v. Weston, 31 F.3d 887, 888 (9th Cir. 1994.) In general, a states sexual offender registration laws do not render a habeas petitioner in custody because they are a collateral consequence of conviction that do not impose a severe restraint on an individuals liberty. In re Stier, 152 Cal.App.4th 63, 83 (2007) (citing Resendiz v. Kovensky 416 F.3d 952, 959 (9th Cir. 2005); see, e.g., McNab v. Kok, 170 F.3d 1246 (9th Cir. 1999); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1999.) Though merely being subject to the sex offender registry requirement alone does not satisfy custody for the purposes of habeas relief, the Ninth Circuit has held that incarceration for failure to register as a sex offender does establish custody for 2254 and 2255 habeas relief from the initial conviction that led to the registration requirement. Zichko, 247 F.3d at 1020. In Zichko v. Idaho, the petitioner pleaded guilty to rape and was sentenced to ten years in prison, but served seven. Two years after he was released, he was incarcerated for failing to register as a sex offender. 247 F.3d 1015, 1019 (9th Cir. 2001). He subsequently filed a habeas petition with the federal district court, alleging, inter alia, ineffective assistance of counsel in his rape case. His original sentence would have ended less than a month before he filed the habeas petition. The court ultimately denied the habeas petition on the grounds of state procedural default. Id. at 1021. But the Ninth Circuit first noted that, though the initial rape conviction had expired, Zichko was subject to the registration requirement only because of that initial conviction. Id. 1020. Accordingly, the court held that a habeas petitioner is in custody for the purposes of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction is a necessary predicate to the failure to register charge. Id. at 1019 (citing Brock v. Weston, 31 F.3d 887, 890 (9th Cir. 1994)). The court drew support for its reasoning from the well settled proposition that a habeas corpus petitioner meets the statutory in custody requirements when, at the time he files the petition [] . . . he is in custody pursuant to another conviction that is positively and demonstrably related to the conviction he attacks. Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir. 1985). See also Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394 (2001) (Lackawanna) (holding that petitioner was in custody for jurisdictional purposes because he alleged that the earlier, unconstitutional conviction had enhanced his later sentence); Brock v. Weston, 31 F.3d 887, 890 (9th Cir.1994) (holding that the habeas petitioner could challenge an earlier expired conviction while involuntarily committed for treatment as a violent sexual predator). Though California state cases have yet to issue holdings on the issue, the Supreme Court and Court of Appeals cases have made clear that custody for failure to register can be used to challenge the constitutionality of the original conviction. b. Timely challenge In federal habeas proceedings, the U.S. Supreme Court has held that if . . . a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant . . . may not collaterally attack his prior conviction through a habeas petition related to his current conviction. Lackawanna, 532 U.S. at 402 (quoting Daniels v. United States, 532 U.S. 374, 382 (2001)). Nevertheless, it is possible that, even if the petitioner satisfies the custody requirement, a court could determine that the petition is untimely raised and could decline to review it on the merits. In Lackawanna, though the petitioner was no longer serving the sentence imposed pursuant to his initial conviction, the Court found that the fact that the petitioners current sentence was enhanced by the allegedly unconstitutional prior conviction satisfied the in custody requirement for the purposes of section 2255 and 2254 habeas relief. Id. at 401-02. The Court went on to hold, however, that it would not review the merits of the petition, reasoning: [O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under 2254 on the ground that the prior conviction was unconstitutionally obtained. Id. at 403-04. An exception to this general rule exists if the petitioner can establish that he or she bore no responsibility for failing to obtain timely review of the constitutional claim. In such cases, a habeas petition directed at the enhanced sentence may effectively be the first and only forum available for review of the prior conviction. Id. at 406. The Supreme Court gave the specific examples of a state courts unjustified refusal to rule on a constitutional claim, or a defendant who, after the time for direct or collateral review expired, obtained compelling evidence of actual innocence. Id. at 405. Cf. Brady v. Maryland, 373 U.S. 83; 28 U.S.C. 2244(b)(2)(B) (allowing a second or successive habeas corpus application if the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and . . . the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense). Accordingly, a habeas petitioner who seeks to challenge his custody on the basis of an allegedly unconstitutional prior conviction must show that the petitioner bore no responsibility for the delay in challenging the conviction.