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