A writ of habeas corpus is used to challenge the lawfulness of imprisonment, conditions of confinement, or other actual or constructive restraint on personal liberty. This writ is typically used to challenge the validity of the petitioner’s conviction or sentence when facts supporting the claim are not apparent from the trial record. A writ of habeas corpus can be a tool used to vacate a conviction for immigration purposes if the defendant did not know that the guilty plea he or she entered into would cause adverse immigration consequences. One requirement for this type of writ is that the petitioner must still be in actual or constructive custody.

Raising A Claim of Ineffective Assistance of Counsel

Often in a habeas corpus proceeding the claim being made in the writ of habeas corpus is ineffective assistance of counsel. The appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by a petition of a writ of habeas corpus if the defendant is still in criminal custody. Both the United States Constitution and the California Constitution give a criminal defendant the right to assistance of counsel.

Often times a writ of habeas corpus is a writ of last resort when other post-conviction vehicles have failed and the petitioner is still in criminal custody. A non-citizen defendant may find him or herself in a situation where their defense attorney did not fully advise of the adverse immigration consequences that he or she would be facing as a result of the plea. If a defense attorney does not fully advise a non-citizen defendant of the plea then the non-citizen defendant may have a legitimate claim of ineffective assistance of counsel resulting from the defense attorney’s conduct during the plea process.

The right to counsel entitles a defendant to effective counsel. The standard against which counsel’s effectiveness will be measured is that of a “reasonably competent” attorney who acts as a “diligent conscientious advocate.” Under this standard, a defendant may reasonably expect that before counsel undertakes to act at all he or she will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. In short strategic choices made after inadequate investigation fall short of providing effective assistance if “reasonable professional judgment” would not support the limitation on the investigation. In order for a non-citizen defendant to demonstrate that ineffective assistance requires reversal of his conviction he must demonstrate first, that his counsel’s performance was deficient, and second, that he was prejudiced by that deficiency. This is a high standard to prove and in order to determine if you qualify it is important to consult with experienced attorneys such as those at Uribe & Uribe APLC.

The Standard Upon Which A Defense Attorney Is Measured

A defense attorney’s conduct while representing a client is measured by the standard of the legal community at the time of the representation.

The American Bar Association’s Standards for Criminal Justice can be used to determine whether a defense attorney’s conduct during the representation was appropriate. The American Bar Association is a national organization that oversees the practice of law in the United States. The ABA as it is commonly referred to, frequently opines on the practice and conduct of attorneys in the United States. Although these opinions are not law and they are not binding on attorneys in their everyday practice these opinions are well-regarded in the legal community and set the standard for practitioners. When it comes to the representation of non-citizens in criminal court the ABA has outlined standards and steps that criminal defense attorneys must take to competently represent their client’s interests. This standard requires the defense counsel to aid the defendant in reaching a decision regarding a plea agreement by advising a defendant, after appropriate investigation, of the alternatives available and of considerations deemed important by the defense counsel or the defendant in reaching a decision.

A Guilty Plea Must Be Made Voluntarily

Before a court can accept a defendant’s plea, a court must first make a finding that a guilty plea (guilty or no contest) was made voluntarily, knowingly, and intelligently by the defendant entering the plea. In re Johnson (1965). Case law has held that a prosecutor and the court can later prove that a defendant entered a plea voluntarily, knowingly, and intelligently if the court docket or minute order states that the plea was entered “knowingly, intelligently, and understandingly made”. People v. Garcia (1979). A judge would make this determination based on the evidence he or she finds in the court file. Helpful evidence in this type of case could be a transcript of the plea, a signed waiver of rights form, or other documentary evidence that may exist in the court file.

The Right to Counsel

The right to have an attorney represent a defendant ensures that the defendant has effective counsel. Both the federal and state Constitutions give a criminal defendant the right to assistance of counsel. The right to counsel entitles a defendant to effective counsel. Specifically, it entitles a defendant to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. Under this standard, a defendant may reasonably expect that before counsel undertakes to act at all he will make a rationale and informed decision on strategy and tactics founded on adequate investigation and preparation. To prevail on his claim of ineffective assistance of counsel, the respondent must demonstrate;

  • 1
    Counsel’s performance was deficient and
  • 2
    He was prejudiced by the deficiency.

This is a very high standard to meet and fortunately for those non-citizen defendants seeking a remedy under Penal Code section 1473.7, they do not have to meet that high standard. For more on the legal standard that must be shown per Penal Code 1473.7 follow this link.


In order to be successful in a writ of habeas corpus a non-citizen defendant must assert a viable claim that would give a reviewing court the appropriate cause to call for judicial review. Convictions based on a plea of guilty must also be supported by a record of the plea. The plea is what a defendant enters when he or she accepts a deal to resolve a criminal complaint against him or her. A transcript of the plea contains direct evidence that the accused was advised of the right to a jury trial, to confront witnesses, and against self-incrimination, and that he or she “knowingly and intelligently” waived each of those three rights. The court record must also show that the defendant knew both the nature of the change and the consequences of entering a plea of guilty. Boykin v. Alabama (1969), In re Tahl (1969). The Boykin- Tahl rights are a powerful protection for defendants accused of crimes. These protections extend to defendants that are entering a plea of guilty or no contest.

You Must Knowingly, Intelligently, And Voluntary Waive Your Constitutional Rights

You Must Knowingly, Intelligently, And Voluntary Waive Your Constitutional Rights

Entering a plea to a criminal conviction requires a defendant to waive his or her Constitutional rights. Regardless of citizenship status, defendants in misdemeanor and felony cases must be informed of explicitly waiving their Constitutional Rights before entering a plea. People v. Sumstine (1984). Some of these Constitutional Rights are listed below;

Actual Innocence

  • Right to counsel
  • Privilege against compulsory self-incrimination
  • Right to trial by jury
  • Right to confront an accuser

The Court record must also reflect that the defendant is aware that the charge to which he or she is pleading guilty is a constitutionally valid charge. In re Tahl (1969).

The court in the Soriano decision held a defendant received ineffective assistance of counsel where counsel provided only a pro forma warning that the defendant’s guilty plea could have immigration consequences without researching the specific consequences of the plea.


According to the California Constitution, an accused defendant unrepresented by counsel must be advised of and waive the right to counsel before entering a plea of guilty or no contest. Before the court must be satisfied that the defendant understands that he or she has the right to an attorney, and a defendant who does not wish to be represented by counsel must so state in open court. People v. Chadd (1981).


Answers To Frequently Asked Questions

How Is Habeas Corpus Motion Used?

Habeas corpus relief today is mostly used after a conviction on state or federal charges. A habeas corpus writ is one way a prisoner can challenge the legality of the application of laws that resulted in his or her detention. Habeas corpus is used in determining certain aspects of criminal cases, such as, whether there is an adequate basis for detaining a person. Whether the case should be moved to another type of court, state or federal? Whether bail or parole should be denied?

What Is Habeas Corpus Relief?

A petition for habeas corpus relief must be made in writing and signed by the petitioner or someone acting on his or her behalf. The petition names the custodian as the respondent and presents facts about the petitioner’s custody, including the legal basis for the request for relief.

How To Get Started In A Habeas Corpus Petition?

Many times a Habeas Corpus petition is a last-ditch effort to help an individual that is facing deportation as a result of the conviction. In the context of an immigration action, a habeas corpus petition can be used to vacate an unjust conviction where the conviction itself is causing the immigration calamity that the non-citizen defendant now finds him or herself in. An immigrant seeking post-conviction relief as a result of being placed in immigration proceedings must start the habeas corpus process with an investigation into the circumstances of the conviction. This would be the first step no matter if the non-citizen defendant was convicted by plea of a jury trial. Whether one was convicted by guilty or no contest plea or jury trial is a big distinction and can change the course of an investigation. For instance, if the non-citizen defendant was convicted by a plea then the circumstance of the plea are investigated. Just some of the questions that are raised are whether the non-citizen’s attorney advised appropriately about the immigration consequences of the plea. Another issue that can be investigated is whether the non-citizen defendant had a knowing and intelligent understanding of the immigration consequences of the plea. If the defendant was convicted by jury trial then the circumstances of the jury trial must be examined. Regardless of how the conviction came about it is important that the first step be a thorough investigation into the circumstances of the case. Once a thorough investigation has been completed then a skilled post-conviction relief attorney will be able to determine what the appropriate steps are to seek the requested post-conviction relief.

A habeas corpus review requires two conditions be met:

  • 1
    The person petitioning for habeas corpus relief must be in custody when the petition is filed.
  • 2
    The Petitioner must exhaust all state remedies including state appellate review before petitioning for habeas corpus relief in federal court.

Jurisdictional Requirements

Under California law, individuals in either actual or constructive custody may file a petition challenging the constitutionality of a conviction or sentence by filing a habeas corpus petition. Once a person is no longer in custody (i.e., they are no longer in jail or prison or on probation or parole), courts no longer have jurisdiction over a habeas petition. See People v. Picklesimer, 48 Cal. 4th 330 (party no longer in constructive custody may not file a writ of habeas corpus); People v. Villa 45 Cal. 4th 1063 (2009).

A habeas corpus petition may be filed in the superior court, the court of appeal, or the supreme court, but a petition filed in a reviewing court must state the petitioner’s reasons for not filing in the superior court.