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Post-Conviction Relief In California After Kim And Villa

by Norton Tooby

Introduction. This article will evaluate the state of post-conviction relief in California, in the aftermath of the California Supreme Court’s March 16, 2009 decisions in People v. Kim and People v. Villa. It is in the nature of a survey, with brief discussions of the full sweep of post-conviction relief in California, and an introduction to a new monthly electronic newsletter, California Post-Conviction Relief for Immigrants, published by the Law Offices of Norton Tooby, which will contain articles in more depth on the issues touched on in this article, sample legal memoranda, and summaries of ongoing developments in the field. A subscription to this newsletter is available on and after 5/5/09for $15.00 per month on our website,

Don’t Wait. The most important lesson from these decisions is not to wait to investigate the possibility and effectiveness of obtaining post-conviction relief from the immigration consequences of criminal convictions. The vehicles available after probation and parole have expired have become fewer and more difficult. Time is of the essence! Immigration counsel should explore post-conviction relief at the beginning of the case so their clients can evaluate the chances of success, and the cost, of efforts in both immigration and post-conviction court while it is still possible to pursue postconviction relief. A future article will discuss the time limits for the various postconviction procedural vehicles that can be used to avoid adverse immigration consequences.

People v. Kim. In People v. Kim, the California Supreme Court reversed the Monterey County Superior Court’s order granting coram nobis relief. It did so on five bases:

(1) The court held that Mr. Kim did not pursue this relief with due diligence, since the DHS began deportation proceedings by placing an immigration hold against him before his release on parole in 1999, yet he did not file the present motion to vacate until 2005. The court held it did not matter that the DHS did not file the moral turpitude ground of deportation against him – the ground he was attempting to neutralize by filing this motion – until after parole had expired. It did not matter that he tried, first, to avoid moral turpitude deportability by seeking discretionary relief from deportation in immigration court, and resorted to the California criminal courts only when the immigration courts’ denial of this relief made it necessary.

(2) The court held that Mr. Kim could not return to the superior court in 2005, seeking to vacate the conviction that was triggering moral turpitude deportation for him, because a habeas-like bar against successive petitions prevented it, even though the prior coram nobis petition had been directed (successfully) against the sentence, rather than the conviction.

(3) The court held that the “unknown fact” that is the basis for coram nobis relief must prevent the judgment in the sense of barring it, on a jurisdiction-like basis, and that preventing the judgment in the sense of motivating the defendant not to enter the plea, or motivating the prosecution or court to allow an alternative disposition, was insufficient.

(4) The court held that the fact that the immigration consequences of the plea were unknown to the court and parties was a “mistake of law,” rather than the “mistake of fact” sufficient to warrant coram nobis relief, and soundly criticized People v. Wiedersperg, even though it did not in so many words overrule it.

(5) The court reaffirmed that Mr. Kim could not raise a claim of ineffective assistance of counsel by means of a coram nobis petition (although he never, in fact did so).

An upcoming article in the California Post-Conviction Relief eNewsletter will discuss Kim in more detail.

In People v. Villa, decided the same day, the California Supreme Court held that federal immigration custody, standing alone, did not constitute “custody” sufficient to confer state habeas corpus custody on the California courts.

In combination, these two decisions leave a gaping hole in California postconviction relief, stranding foreign national defendants without a remedy if the immigration authorities wait until after traditional constructive custody (i.e., probation or parole) has ended before alerting the person to the disastrous immigration consequences of the conviction.

The focus of the balance of this article will be to list various California postconviction vehicles that remain useful, even after Kim and Villa, to eliminate or ameliorate federal immigration consequences of California convictions and sentences.

Vacating Convictions. To eliminate the federal immigration consequences of a conviction, it is necessary to vacate it on some ground of legal invalidity that was in existence when the conviction first arose. If the conviction is vacated solely as a matter of rehabilitation, or to avoid immigration consequences, or for some other reason arising after the conviction came into existence, the conviction remains on the books for federal immigration purposes, even if it has ceased to exist under California criminal law. In deportation proceedings, and certain other federal immigration contexts, the government bears the burden of proof that the conviction exists. If an order vacating a conviction is ambiguous as to whether it was based on a ground or legal invalidity or solely to avoid immigration consequences, and the government cannot prove it was granted solely for immigration purposes, then the government cannot obtain a deportation order on the basis of the conviction.

The following California post-conviction procedural vehicles remain effective to eliminate convictions for immigration purposes:

(1) Habeas Corpus. A defendant can file a habeas corpus petition during actual custody, or while s/he remains on probation or parole. If the person is in custody on the day the petition is filed, the court has jurisdiction throughout the case. If the superior court denies relief, the person must still be in custody on the day an original petition is filed in the court of appeal. The court has habeas jurisdiction on the basis of current custody attributable to a pending charge or sentence to attack the validity of a prior conviction on which the current custody is based. For example, if a person is currently in custody in 2009 on a charge of failure to register as a sex offender, which is based on a 20- year-old conviction for a sex offense – as to which custody has long expired, the person can file habeas challenging unlawful current custody on the current charge, on the ground that the current custody is unlawful because the 1989 prior conviction was itself unconstitutional. If this relief is granted, the court will have entered an order that the 1989 conviction is unconstitutional, that can be used to avoid immigration consequences that would otherwise flow from the old conviction. This technique may be used in a wide variety of California offenses, including petty theft with a prior conviction, exfelon with a gun, a domestic violence or firearm possession offense for which the sentence is enhanced on the basis of a prior conviction, or any current offense that is or may be enhanced by a prior conviction under a wide variety of prior-conviction sentence enhancements, including the Three Strikes Law. Readers are encouraged to email the author with other examples.

(2) Motions to Vacate Under Penal Code § 1016.5. These motions are based on the court’s failure to advise the defendant of three specific possible immigration consequences at the time the plea is entered. There is no time limit within which these motions must be filed, although there is a due diligence requirement similar to that for coram nobis and habeas corpus that was applied in People v. Kim. The Supreme Court, however, in People v. Superior Court (Zamudio) held it would be unfair to use this doctrine to bar relief as to a period prior to the time the defendant became aware of the immigration consequences of the conviction. It is possible to expand the grounds of this motion to argue errors including the court’s failure to establish that the defendant actually understood the warning, or the court’s failure to deliver the warning in a language, or using words, that the defendant could understand.

(3) Nonstatutory Motions to Vacate. Mr. Kim filed such a motion, based on the Supreme Court’s earlier decision in People v Fosselman, in which it held that the trial court had inherent authority to entertain a motion for new trial on grounds of ineffective assistance of counsel, even though the new trial statute did not list that as a ground. In Kim, the Supreme Court did not cite, much less overrule, Fosselman, and in one sentence (Slip Opinion, p. 35), expressed no opinion as to whether the trial court continued to have this inherent authority, although the Supreme Court declined to exercise it in Kim. This leaves it open for counsel to argue this in the trial courts as a matter of discretion in the interests of justice. In Fosselman, the defendant made the motion prior to judgment, and the court recognized that habeas corpus jurisdiction existed, but held the trial court had discretion to use this vehicle as an alternative, since it was simpler and quicker. Counsel can therefore use a motion to vacate, under Fosselman, as a quicker and easier alternative to habeas corpus even where custody exists.

(4) Motions to Withdraw Pleas Under Penal Code § 1018. This motion must be made prior to judgment, or within six months after an order granting probation. It is possible to argue that this time limit should be extended on the basis of equitable tolling.

(5) Writs of Error Coram Nobis. In Kim, the Supreme Court preserved the difficult technical requirements of this writ, which render it practically useless for purposes of vacating convictions to avert their immigration consequences. It might be possible, however, to use this writ where the facts are close to those in People v. Wiedersperg, i.e., where the defendant was unaware that he was not a U.S. citizen. The court held the Penal Code § 1016.5 warning ordinarily meant the defendant could not claim lack of notice, but where the defendant reasonably believed s/he was not a U.S. citizen, the statutory warning would reasonably be ignored as inapplicable, since it clearly states: “If you are not a citizen, . . .” The court’s decision in Kim, however, severely criticized Wiedersperg, but did not overrule it, which would make it unlikely a court would grant this relief even where the facts closely paralleled Wiedersperg. Certain other traditional uses of coram nobis may occasionally arise, such as where the defendant is in fact under the jurisdictional age of 18 and the criminal court therefore lacks jurisdiction on the basis of mistake of age, or where the plea results from “extrinsic fraud.”

Ineffective Assistance of Counsel. The Supreme Court made no holding in Kim or Villa concerning ineffective assistance of counsel. In Resendiz, the Court followed the majority federal rule that affirmative misadvice concerning immigration consequences of a plea may constitute IAC, but said “we are not persuaded” a failure to advise on this subject can constitute IAC. In Kim and Villa, the court did not overrule People v. Soriano, which held in 1987 that a failure to advise the defendant at plea concerning adverse immigration consequences constituted IAC. The law on these subjects is thus unchanged by these decisions.

Post-conviction relief for immigrants has certainly become more difficult, but there remain many procedural vehicles that can still be employed, even after traditional habeas custody has expired.

Future articles in the California Post-Conviction Relief eNewsletter will discuss in more detail the decisions in Kim and Villa, each of the procedural vehicles listed in this article by which convictions can still be invalidated, various methods by which sentences can be modified or eliminated, the beneficial immigration effects of rehabilitative procedures such as Prop. 36 dismissals, Deferred Entry of Judgment dismissals, expungements pursuant to Penal Code § 1203.4, reductions of felonies to misdemeanor under Penal Code § 17(b)(3), reductions of certain misdemeanors to infractions, and new procedural vehicles and theories for ameliorating immigration consequences of convictions and sentences that can be used even after probation and parole have expired.

Copyright © 2009 by Norton Tooby. All rights reserved

About The Author

Norton Tooby is a criminal defense attorney with offices in Oakland, California. After graduating from Harvard University in 1967, he attended Stanford Law School where he served as President of the Stanford Law Review in 1969-1970. Since 1986, he has specialized in criminal defense of non-citizens, and his career has been devoted almost entirely to criminal defense work, culminating in the successful appeal of a death penalty case before the California Supreme Court under Chief Justice Malcolm Lucas in 1988 in which all convictions were reversed and his client was set at liberty. Since that time, he has increasingly specialized in criminal representation of immigrants.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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