Tooby's California Post-Conviction Relief for Immigrants

Chapter

§8.1 I. Introduction
§8.2 II. Immigration Consequences of Sentence
§8.3 A. Definition of "Sentence Imposed"
§8.4 1. What Is Included in "Sentence Imposed"
§8.5 2. California Youth Authority Commitment Does Not Qualify as a Sentence to Confinement
§8.6 B. Length of "Sentence Imposed"
§8.7 1. Aggravated Felonies Requiring 1-Year "Sentence Imposed"
§8.8 a. The 1-Year List
§8.9 b. Reduction of Sentence Below 1 Year
§8.10 2. Petty Offense Exception to Inadmissibility Requires Sentence Imposed of 6 Months or Less
§8.11 a. Petty Offense Exception Generally
§8.12 b. Effects of Petty Offense Exception in Specific Immigration Contexts
§8.13 3. A Noncitizen Becomes Inadmissible if Convicted of 2 or More Offenses for Which the Aggregate Sentences to Confinement Totaled 5 Years or More
§8.14 4. Mandatory Detention Is Triggered if a Noncitizen Is Deportable for 1 Conviction of a Crime of Moral Turpitude for Which a Sentence of 1 Year or More Has Been Imposed
§8.15 5. Restriction on Removal (Formerly Withholding of Deportation) Requires a Noncitizen to Avoid an Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
§8.16 6. A Conviction Is Considered a Misdemeanor, for Purposes of Adjustment of Status, if the State Designates It as a Misdemeanor and the Sentence Imposed Is 1 Year or Less, Even if the Maximum Sentence Is Greater
§8.17 C. Length of Actual Confinement
§8.18 1. To Be Eligible for the Former Waiver of Deportability under INA 212(c), the Noncitizen Must Avoid Service of an Actual Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
§8.19 2. A Noncitizen Is Disqualified from Showing Good Moral Character if Actually Confined as a Result of Criminal Convictions for a Total of 180 Days or More
§8.20 3. Situations that Require Good Moral Character
§8.21 D. Naturalization May Not Be Granted if the Applicant Is Currently On Probation or Parole
§8.22 E. The Sentencing Judgment, Which Forms Part of the "Record of Conviction," Can Lead to Adverse Immigration Consequences
§8.23 III. Obtaining an Effective Order Vacating or Reducing a Sentence
§8.24 A. Effect of Vacating the Conviction
§8.25 B. Vacating the Original Sentence on a Ground of Legal Invalidity
§8.26 C. Obtaining an Order Modifying the Original Sentence
§8.27 D. Modifying a Sentence Under a State Rehabilitative Statute
§8.28 IV. Procedural Vehicles for Vacating or Reducing the Sentence
§8.29 A. Direct Appeal from Sentence
§8.30 B. Petition for Writ of Habeas Corpus
§8.31 C. Non-Statutory Motion to Vacate Sentence
§8.32 D. Petition for a Writ of Error Coram Nobis
§8.33 E. Motion to Correct Void Sentence
§8.34 F. Commutation or Correction of Sentence Under Penal Code §x1170
§8.35 G. Motion to Shorten Probation
§8.36 1. Shortening Probation in Driving Under the Influence Cases
§8.37 2. Note on Shortening Parole
§8.38 V. Grounds to Vacate the Sentence
§8.39 A. Jurisdictional Defects
§8.40 B. Substantive Constitutional Guarantees
§8.41 C. Due Process Rights in the Sentencing Hearing
§8.42 D. Violations of the Right to Counsel
§8.43 1. The Right to Counsel
§8.44 2. Ineffective Assistance Generally
§8.45 3. Immigration-Related Ineffective Assistance at Sentencing
§8.46 4. Examples of Ineffective Assistance of Counsel with Respect to the Immigration Consequences of the Sentence
§8.47 a. Moral Turpitude Offenses
§8.48 b. Length of Sentence of Incarceration
§8.49 c. Aggravated Felonies
§8.50 d. Anticipating Post-Conviction Relief
§8.51 E. Seeking a Judicial Recommendation Against Deportation

§ 8.41 (I)

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(I)Prosecutorial Misconduct in Argument. The prosecution has both an ethical and constitutional duty to ensure that its arguments regarding sentence do not lead to a sentence based on prejudice or passion. Due process can be violated by inflammatory remarks by the prosecutor, especially before a sentencing jury.[203] The prosecution must also not make disparaging remarks regarding racial, ethnic or religious groups.[204]

[203] See ABA Standards Relating to Sentencing Alternatives and Procedures, § 5.3(b) (1968); Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985).

[204] Cf. Bains v. Cambra, 204 F.3d 964, 974 (9th Cir. 2000); see also McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987) (noting that “[t]he Constitution prohibits racially biased prosecutorial arguments”)