Tooby's California Post-Conviction Relief for Immigrants

Habeas corpus is appropriate where the face of the record establishes that the sentence was imposed in excess of the jurisdiction of the court.[159]  This includes the following circumstances.

·  An invalid prior conviction enhanced the sentence[160]

·  The sentence violated the rule against multiple punishment

·  An amendment to the final judgment increased the sentence

·  The sentence was in violation of the rule requiring the court to apply legislative reductions in punishment made prior to the finality of the judgment

·  The judgment contained an erroneous computation of credit for time served (Note that an appeal will not lie on this ground unless application is first made in the trial court for this correction under Penal Code § 1237.1.)

·  The sentence was imposed in violation of the determinate sentence law

·  The determinate sentence law was applied retroactively in violation of law[161]

            For a more extensive discussion, see N. Tooby, Post-Conviction Relief For Immigrants. § § 7.65-7.119 (2004)

[159] In re Estrada (1965) 63 Cal.2d 740, 750, 48 Cal.Rptr. 172; In re May (1976) 62 Cal.App.3d 165, 133 Cal.Rptr. 33.  See also In re Huffman (1986) 42 Cal.3d 552, 229 Cal.Rptr. 789.  For additional jurisdictional claims which may be raised by habeas corpus, see Erwin et al., California Criminal Defense Practice, supra, at § 102.10[2][b].

[160] A prior conviction resulting from an uncounseled guilty plea for which there was an invalid waiver of counsel may not be used to enhance a later offense where the prior conviction resulted in incarceration. See Baldasar v. Illinois, 446 U.S. 222 (1980); Nichols v. United States, 511 U.S. 738 (1994).

[161] See D. Fischer, et al., Appeals and Writs in Criminal Cases, § 2.168.