Khodayari v. Mashburn, 200 Cal.App.4th 1184, 132 Cal.Rptr.3d 903 (2d Dist. Nov. 15, 2011) (post-conviction counsel is not liable in tort for malpractice unless (a) the plaintiff can show actual innocence, and (b) the plaintiff obtained post-conviction exoneration of the offense concerning which malpractice liability is sought).

The court reasoned:

In California, it is extremely difficult for a client to recover for legal malpractice committed during representation seeking post-conviction relief:

In his instant civil suit against respondent, he alleged that respondent's deficient representation caused him to be found in violation of probation. As a result, he was incarcerated longer than was necessary, and respondent, without appellant's consent, induced appellant's brother to pay restitution on appellant's behalf, falsely representing that the payment would not be distributed to the victims pending appellant's appeal from his criminal convictions. Appellant seeks damages for emotional distress and lost income resulting from his incarceration, and damages for the restitution paid by his brother, who is now demanding repayment from appellant.

The trial court sustained respondent's demurrer to appellant's complaint without leave to amend and dismissed the case. In this appeal by appellant, we conclude that all of appellant's causes of action sound in legal malpractice. We hold that the policy rationale of the actual innocence requirement (Wiley v. County of San Diego (1998) 19 Cal.4th 532 (Wiley); Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia) mandates that appellant show actual innocence of the probation violations allegedly resulting from respondent's malpractice, and also obtain post-violation exoneration of those violations. Because appellant did not comply with these requirements, and has not shown that he can, the demurrer was properly sustained without leave to amend.

(Khodayari v. Mashburn, 200 Cal.App.4th 1184, 132 Cal.Rptr.3d 903, 904-05 (2d Dist. Nov. 15, 2011).)