"Padilla Motions" in California Criminal Immigration Law

A so-called "Padilla motion" is a motion to reverse a guilty plea for non-US-citizens whose attorney did not advise them of the immigration consequences of pleading guilty to a crime.

In 2010, the United States Supreme Court held, in a case called Padilla v. Kentuckythat a non-citizen criminal defendant who pleads guilty can later challenge their conviction--if their lawyer did not do a good enough job of informing them beforehand of the potential immigration consequences of the guilty plea. 1

Padilla applies only to defendants whose guilty verdict became final after March of 2010.2

Essentially, the "Padilla motion" is a way for non-citizens facing the severe immigration consequences of a criminal conviction--which may include deportation--to obtain post-conviction relief because of ineffective assistance of counsel.

Seal-of-US-Supreme-Court-representing-Padilla-v-Kentucky
A "Padilla motion" is based on a landmark Supreme Court case -- Padilla v. Kentucky.

Example: Manuel is a legal immigrant who has lived in the United States since he was six years old. He is accused of being involved in drug trafficking.

Manuel does not have the money to pay for an attorney and is assigned to a public defender who knows nothing about immigration law. The public defender tells Manuel that he should plead guilty in exchange for a lesser sentence--so he does so.

Then Manuel's sister finds out through internet research that a conviction on this charge could make Manuel deportable. Fortunately, Manuel has not yet been sentenced. So he borrows money from his sister and hires a new lawyer to file a motion to withdraw a guilty plea, in which he makes the Padilla argument.

If are facing deportation or other damage to your immigration status because you pled guilty without understanding the immigration consequences--a California criminal defense lawyer who understands immigration law can help you--even after you've been convicted.

Depending on the background of your case, a Padilla motion may make sense.

Donald Trump's election as US president--based in part on promises to speed up deportation of immigrants with criminal records--makes it all the more urgent for non-citizens with criminal convictions to seek help now.

In this article, our experienced California criminal defense and immigration attorneys 3 explain Padilla motions in California by addressing the following:

1. What are the Immigration Consequences of Criminal Convictions?
2. What is Padilla v. Kentucky?
3. How Do I Bring a Padilla Motion in California?
4. What are the Requirements for a Successful Padilla Motion?

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

1. What are the Immigration Consequences of Criminal Convictions?

The immigration consequences of being found guilty of a crime have grown much harsher over the past few decades.4 As a result, the criminal defense of immigrants in California has become a particularly complicated and high-stakes matter--a problem which the Supreme Court may have had in mind when they decided the Padilla case.

Deportable crimes

The most extreme consequence of a criminal conviction for a non-citizen is of course deportation - being removed from the United States. If you are convicted of certain crimes, you may be deported even if your immigration status has always been legal.

US-immigration-enforcement-badge
A guilty plea to a deportable crime can potentially be reversed by a Padilla motion.

There are several main categories of crimes California that can lead to deportation. These are

  1. So-called "aggravated felonies."5 This includes dozens of violent and nonviolent crimes, such as murder, rape, certain theft crimes and certain white-collar crimes.6
  2. California drug crimes, including mere possession of a controlled substance (Health & Safety Code 11350 HS).7
  3. Certain violations of California gun laws.8
  4. California domestic violence crimes.9
  5. So-called "crimes Involving moral turpitude."10

If you are a non-citizen convicted of a deportable crime, the Department of Homeland Security may initiate deportation proceedings in an immigration court. But a successful Padilla motion will prevent you from being deported.

Inadmissible crimes

Another category of crimes with immigration consequences are so-called "inadmissible crimes." The most important inadmissible crimes are:

  1. Crimes involving moral turpitude,

  2. Drug crimes, and

  3. Multiple criminal convictions with sentences totaling five (5) years or more.

A conviction for an inadmissible crime will not make you deportable. But it will make you ineligible to receive important immigration benefits from the US government--which means you will not be able to apply for a green card or "adjustment of status", become a US citizen or enter the country after leaving it.

Again, though, a successful Padilla motion may allow you to avoid the serious consequences of a conviction for an inadmissible crime.

2. What is Padilla v. Kentucky?

The landmark 2010 Supreme Court case of Padilla v. Kentucky is where the concept of Padilla motions originated.

Hector Padilla was from Honduras. He had been a legal resident of the United States for over 40 years and had served in the US Armed Forces in Vietnam. But then he was accused of transporting a large amount of marijuana in his truck.11

Padilla's lawyer in his criminal case told him that he did not have to worry about his immigration status if he pled guilty because he had been in the country for so long. So Padilla pled guilty to a drug charge that was more or less certain to lead to deportation.12

The Sixth Amendment to the United States Constitution, which is part of the Bill of Rights, provides all criminal defendants criminal with the right to a fair trial.13 If a defendant's lawyer does a bad enough job, the defendant can argue that this right was violated by "ineffective assistance of counsel."14

US-constitution-bill-of-rights
The Sixth Amendment to the US Constitution is the constitutional basis for Padilla v. Kentucky.

Padilla then argued that his lawyer's incorrect advice about the immigration consequences of a guilty plea violated his Sixth Amendment rights.15 His case--Padilla v. Kentucky--made it all the way to the United States Supreme Court.

The Court held that the advice Padilla received from his lawyer was deficient enough to violate Padilla's Sixth Amendment rights, since his lawyer had not told him that his guilty plea would almost certainly lead to deportation.16

With this holding, the concept of a Padilla motion was born.

3. How Do I Bring a Padilla Motion in California?

A Padilla motion is an attempt to convince the court that a defendant facing deportation because of a guilty plea should be allowed to withdraw that plea and start again with a new trial--because his or her lawyer did not do a good enough job of warning him/her that deportation could result if s/he pled guilty.

According to Los Angeles criminal defense and immigration attorney Neil Shouse17:

"The Supreme Court's holding in Padilla is less than a decade old. Because of this, the law In this area is still unsettled. Lawyers and courts are in the process of figuring out how Padilla motions work in practice and how they interact with other protections the states and federal government give to criminal defendants facing deportation."

Based on the current state of the law, it looks like there are several ways to bring a "Padilla motion" if you have pled guilty to a crime in California courts. These are:

Motion to withdraw a plea

Penal Code 1018 PC states that California defendants may ask the court to let them withdraw a plea of guilty or no-contest. If the defendant had a lawyer when s/he pled guilty, the court may (but will not necessarily) grant this motion if both of the following are true:

  1. The defendant has not been sentenced yet (i.e., the judgment of conviction is not yet final), OR it is six (6) months or less after an order granting probation has been made in cases that do not Involve jail time, AND
  2. The defendant can show "good cause."18

Even before Padilla v. Kentucky, California courts considered it "good cause" if a defendant did not realize the potential immigration consequences of a guilty plea.19 Since Padilla was decided, it's even clearer that a defendant probably has good cause to withdraw a plea if his/her lawyer did not adequately explain the immigration consequences of a guilty plea.

This form of Padilla motion is severely limited, though -- because the motion to withdraw a plea has to be filed before the final judgment of conviction. Many people do not realize that they're going to be deported until the Department of Homeland Security starts deportation proceedings--sometimes years after the judgment was final!

Direct appeal

Another way you can bring a Padilla motion is to directly appeal your California criminal conviction.

A Padilla motion in the form of an appeal makes sense only if you pled guilty without understanding the immigration consequences of doing so. Most criminal appeals in California are made after a plea of not guilty. However, you can still appeal a conviction resulting from a guilty plea--it's just more complicated to do so.20

Judge's-bench-in-courtroom
One way to bring a Padilla motion is through a direct appeal of your criminal conviction.

Ineffective assistance of counsel--the basic complaint in a Padilla motion--is a valid reason to appeal a conviction that resulted from a guilty plea 21 But in order to appeal a conviction resulting from a guilty plea, you have to first do the following:

  1. Make a written statement, signed by you and your attorney under oath, describing the constitutional basis for your appeal (in this case, ineffective assistance of counsel under Padilla v. Kentucky), and
  2. Based on this statement, get the trial court that convicted you to issue a "certificate of probable cause" confirming that the appeal is not frivolous.22

It's also important to be aware of the deadlines for filing a Padilla motion as an appeal.

For an appeal of a felony conviction in California, the deadline for filing both the appeal and the written statement described above is sixty (60) days after the criminal judgment.23 For an appeal of a misdemeanor conviction in California, the deadline is thirty (30) days after the judgment.24

These deadlines are tight, and if you miss them you are probably out of luck. As with the motion to withdraw a guilty plea, this method of bringing a Padilla motion will not be much help to people who do not find out that their guilty plea means they can be deported until long after they are sentenced.


Example: May has been in the United States legally since she moved here to go to college. She, along with several coworkers, is charged with a fraud offense relating to some shady dealings that took place at the real estate office where she works.
May is devastated by the criminal charges and hires a lawyer recommended by a friend. The lawyer advises her to plead guilty to conspiracy to commit fraud, which will involve a short prison sentence, without telling her about potential immigration consequences.
After May has been sentenced, she finds out from another friend that she has pled guilty to an aggravated felony, which makes her deportable. Luckily, she is still within the 60-day deadline for filing a direct appeal of a felony.
So May hires a new lawyer specializing in criminal appeals and successfully appeals her conviction based on Padilla v. Kentucky.

Petition for habeas corpus

In California, a criminal defendant can Padilla Also bring a motion after s / he Has Been Sentenced ... in the form of a writ of habeas corpus (sometimes called a "habeas petition"). 25 A writ of habeas corpus in California challenges the legality of the state keeping the defendant in custody. 26

You can argue in a habeas petition That You Should not be imprisoned, Because you were only Convicted Because You pled guilty as a result of incompetent advice from your lawyer. The California courts offer a standardized form for filing a petition for writ of habeas corpus .

The major limitation of the writ of habeas corpus as a Means of bringing a motion Padilla Is That it can only be filed while you are in custody of the state-so you must be Either in prison or on probation at the time of filing. 27 If you find out that you 'May be Deported only after You have served your sentence, you will not be Able to Take This route. 28

Example : Let's return to our example from above May. May's friend Imagine That does not tell her about the immigration Consequences of her conviction until after the 60-day deadline for filing an appeal.

But she is still serving her prison sentence. THEREFORE, she is reliable to hire an appellate lawyer and file a motion Padilla through a writ of habeas corpus.

Release_from_prison-optimized
You must currently be in jail or prison to file a petition for writ of habeas corpus.

Because of the tight deadlines for motions to withdraw pleas and direct Appeals - and the custody requirement of habeas corpus petitions - some unlucky WHO defendants plead guilty based on bad advice attorney will have no way of "taking back" their plea.

Example : Rocky is originally from Taiwan and has lived in the United States legally for 20 years, since I was 12. He is charged With drug crimes, and have pleads no contest to charges of possession of methamphetamine for sale. This is a misdemeanor charge. His lawyer does not discuss the Possibility of immigration Consequences With Him. I is Sentenced to three years' probation and a drug treatment program. EIGHT years later (!), the immigration Authorities initiate deportation proceedings against him. It turns out the offense to That Which I pled guilty Means mandatory deportation. 29 Rocky has no way of bringing a motion Padilla. I was Sentenced years ago, so I can not make a motion to withdraw His His plea or conviction appeal. Because I is no longer serving His probation, Also I can not bring a writ of habeas corpus. 30 THEREFORE, Rocky will probably be Deported.

4. What are the Requirements for a Successful Padilla Motion?

Regardless of how the motion is Brought-as a motion to withdraw a plea, a writ of habeas corpus, or to direct appeal-a successful motion Padilla needs to show three things:

  1. That the defendant's conviction end Became after the Padilla case was decided ... so after March of 2010,
  2. That the defendant received "constitutionally Insufficient" advice from her / his lawyer before pleading guilty, and
  3. That "prejudice" resulted. 31

The Latter two items on This list are Things That must be shown in any motion based on "ineffective assistance of counsel." 32 What makes Padilla motion special Is That the second prong-the lawyer's advice Being constitutionally Insufficient-is based on the lawyer's Their failure to advise client about the immigration Consequences of a guilty plea.

Conviction final after March 2010 (Chaidez v. United States )

In a 2013 case called Chaidez v. United States , the Supreme Court held That the decision in Padilla v. Kentucky does not apply retroactively. In other words, it does not apply to convictions That occurred before Padilla was DECIDED. 33

What That Means That is the only defendants WHO can file motions Padilla successful convictions Became Are Those Whose end after March of 2010.

This does not mean that you 'need to Have whos pled guilty after March of 2010. A conviction end Becomes When all of a defendant's Directly appealing options for his / her conviction Have Been exhausted or expired.

So all the deadlines for filing an appeal need To have passed. Or, if you did your guilty plea appeal, the appeal needs to Have Been DECIDED by a court.

If any of These things occurred after March of 2010, Then You May file a motion Padilla.

This limitation leaves a lot of people out in the cold ... even though Insufficient They received the same advice from lawyers as the ones Their Convicted after March 2010! Unfortunately, Because this is a rule put in place by the Supreme Court of the United States , there is likely no way around it.

Calendar-set-to-March-2010
You can only bring a motion under Padilla v. Kentucky if your conviction became final after March of 2010.

Constitutionally insufficient advice

In deciding Padilla's case, the Supreme Court spelled out what a criminal defense lawyer is required to do for a non-citizen client Accused of a crime That May Have Consequences immigration:

  1. The lawyer must do some basic research into immigration law, Which is an overwhelmingly complex field.
  2. If the law is not easy to Understand or is not clear about the immigration Consequences of a conviction, the lawyer just needs to advise Their client That there May be at risk of deportation or other immigration problems. 34
  3. But if the law is "truly clear" that deportation will result if the defendant pleads guilty-as it was in Padilla's case-the lawyer is absolutely required to tell esta Their client. 35

If the lawyer fails to Provide esta advice, then a, According to Padilla v. Kentucky , Their advice was constitutionally Insufficient.

Prejudice to the defendant

The "prejudice" prong is trickier than the "insufficient counsel" prong.

The overall rule in California Is That there is prejudice only if there is a "reasonable probability" that the result of the criminal trial would Have Been Different if the defendant HAD received better advice from his or her lawyer. 36

If you pled guilty to a crime, there is almost Certainly going to be a reasonable probability that you 'Could have been found innocent if the case HAD gone to trial. Had you taken the case to trial, the prosecution would Have Been required to show That you were guilty beyond a reasonable doubt.

But what May be slightly harder in California is showing that you 'would not have any pled guilty if your lawyer HAD Given you better advice. This is Because California has a special requirement That Judges -in Addition to criminal defense lawyers-warn all defendants pleading guilty or no-contest Their immigration status That May be Affected.

Specifically, courts are required to inform These defendants That,

"If you are not a citizen, you are hereby advised That conviction of the offense for Which You Have Been charged May Have The Consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States . " 37

As we Discussed above, if you are charged with a crime, and a conviction for crime That will result in Clearly You Being Deported, your attorney is required to tell you this. In This case, the warning from the immigration court Consequences That May result if you plead guilty probably will not matter.

But let's say you plead guilty to a crime, and the law is unclear as to Whether Necessarily esta crime leads to deportation. (For example, It could be a crime That Might or Might not be a crime Involving moral turpitude. 38 ) If the immigration Authorities Then try to deport you, you could try to bring a motion arguing Padilla your attorney That Should Have at Least Informed You That deportation Could result.

But you May not be Able to show prejudice, Because the trial court Would Have Given You The generic warning quoted above. So you May not be Able to Convince a court That You Would Have Chosen not to plead guilty if you'd gotten to a similar warning from your lawyer instead. 39

Relief in any case, always seek the counsel of a good criminal / immigration lawyer with experience in post-conviction. He / she will know the best strategies for bringing Padilla motion and fighting to spare you of immigration Consequences for your guilty plea.

Call us for help ...

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If you or loved one is in need of help with Padilla motions and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can Provide a free consultation in office or phone. We Have Local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and THROUGHOUT California.

To learn about the criminal defense of immigrants Nevada, go to our page on the Nevada criminal defense of immigrants and our page on modifying or vacating past criminal convictions for immigrants, aliens and non-citizens in Nevada .

Legal References:

1 Padilla v. Kentucky, (2010) 130 S.Ct. 1473, 1478. ("We Granted certiorari... To Decide Whether, as a matter of federal law, Padilla's counsel Had an obligation to advise him That the offense to Which I was pleading guilty would result in His removal From this country. We Agree with Padilla That constitutionally competent counsel advised him That Would Have His conviction for drug distribution made him subject to automatic deportation. ") (internal citations omitted)

2 Chaidez v. United States, (2013) 568 US ____, No. 11-820, at 1.

3 Our California criminal defense and immigration attorneys locally unavailable California Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices THROUGHOUT the state conveniently located in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

4 Padilla v. Kentucky, (2010) 130 S.Ct. 1473, 1478. ("The landscape of federal immigration law Dramatically has changed over the last 90 years. While there was only eleven o'clock a narrow class of deportable Offenses and Judges wielded broad discretionary authority to Prevent deportation, immigration Reforms Have expanded over time the class of deportable Offenses and limited the authority of judges to alleviate the harsh Consequences of deportation. The 'drastic measure' of deportation or removal is now virtually unavoidable for a vast number of noncitizens Convicted of crimes. ") (internal citations and quotation marks omitted)

5 8 USC § 1227 (a) (2) (A) (iii). ("Any alien Who is Convicted of an aggravated felony at any time after admission is deportable.")

June 8 USC § 1101 (a) (43) (definition of the term "aggravated felony").

July 8 USC § 1227 (a) (2) (B). ("(B) Controlled substances (i) Conviction. Any alien WHO at any time after admission Has Been Convicted of a violation of (or a conspiracy or Attempt to violate) any law or regulation of a State, the United States, or to foreign country Relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense Involving possession for one's own use of 30 grams or less of marijuana, is deportable. (ii) Drug abusers and addicts Any alien WHO is, or at any time after admission has-been, a drug abuser or addict is deportable. ")

8 8 USC § 1227 (a) (2) (C (C). ("firearm Certain Offenses. Any alien WHO at any time after admission is Convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning , Possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, POSSESS, or carry, any weapon, part, or accessory Which is a firearm or destructive device (as defined in section 921 (a) of Title 18) in violation of any law is deportable. ")

September 8 USC § 1227 (a) (2) (E). ("(E) (i) Domestic violence, stalking, and child abuse. Any alien WHO at any time after admission is Convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of esta clause, the term "crime of domestic violence" Means any crime of violence (as defined in section 16 of Title 18) against a person Committed by a current or former spouse of the person, by an Individual with Whom the person shares a child in common, by an Individual Who is cohabiting or has cohabited With With the person as a spouse, by an Individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction Where the offense OCCURS, or by any other single against A person who is protected from That single's acts under the domestic or family violence laws of the United States or any State, tribal Indian government, or unit of local government. (ii) Violators of protection orders. Any alien WHO at any time after admission is enjoined under a protection order issued by a court and Whom the court Determines you have engaged in conduct That violates the portion of a protection order That Involves protection against credible Threats of violence, Repeated harassment, or bodily injury to the person or persons For Whom the protection order was issued is deportable. For purposes of esta clause, the term "protection order" Means any injunction issued for the purpose of preventative violent or threatening acts of domestic violence, Including temporary end or orders issued by criminal or civil courts (other than child support or custody orders or Provisions ) Whether independent Obtained by filing an action or as a pendente lite order in another proceeding. ")

10 8 USC § 1227 (a) (2) (A) (i). ("Any alien who-- (I) is Convicted of a Crime Involving Moral turpitude Committed Within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and (II) is Convicted of a crime for Which a sentence of one year or longer May be imposed, is deportable. ")

11 Padilla v. Kentucky, (2010) 130 S.Ct. 1473, 1477.

12 Same at 1478.

13 US Const., am. SAW. ("In all criminal Prosecutions, The Accused Shall enjoy the right to a speedy and public trial, by an Impartial jury of the State and district Wherein the crime Shall Have Been Committed, Which Shall Have Been Previously district ascertained by law, and to be Informed of the nature and cause of the accusation; to be Confronted With the witnesses against him; To have compulsory process for witnesses in His Obtaining please, and To have the Assistance of Counsel for His defense ").

14 See Strickland v. Washington, (1984) 466 US 668, 686.

15 Padilla v. Kentucky, (2010) 130 S.Ct. 1473, 1478.

16 Same, at 1486-1487. ("Taking as true the basis for His motion for postconviction relief, We have little difficulty concluding That Padilla has Sufficiently Alleged That His counsel was constitutionally deficient.")

17 Los Angeles criminal defense and immigration attorney Neil Shouse is a former Los Angeles County Deputy District Attorney With many years of criminal trial experience on cases ranging from DUI and drug charges to complex, high profile murders. Mr. Shouse Represents clients at a number of locations of the California courts , Including the Pasadena courthouse , the Burbank courthouse , the courthouse Glendale , the Alhambra courthouse , and the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles.

18 Penal Code 1018 PC. ("On application of the defendant at any time before judgment or withinsix Granting months probation after an order is made if entry of judgment is suspended, the court may, and in case of a defendant WHO Appeared without counsel at the time of the plea the Shall court, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty Substituted. ")

19 People v. Superior Court (Giron), (1974) 11 Cal.3d 793.

20 In re Chavez (2003) 30 Cal.4th 643, 649 ("When a defendant pleads not guilty and is Convicted as the result of a trial, in generally any issue bearing on the determination of guilt and apparent from the record is cognizable on appeal. (See § 1237.) By contrast, When a defendant pleads guilty or no contest and is Convicted without a trial, only limited issues are cognizable on appeal. ")

21 Same, note 2. ("[W] e [Have] enumerated the issues That, by the time of our decision, HAD Been Determined to be appealable following the entry of a plea of guilty or no contest: insanity at the time of ... the plea, ineffective waiver of constitutional rights, ineffective assistance of counsel.... ") (internal quotation marks omitted)

22 California Penal Code 1237.5 PC - Appeal process by defendant from judgment of conviction upon plea of guilty or nolo contendere or revocation of probation; certificate of probable cause; operative date. ("No appeal Shall be taken by the defendant [or from his / her lawyer California Appeals] from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except Where Both of the following are met:. (a) The defendant has filed the trial court With a written statement, Executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings (b) The trial court has Executed and filed a certificate of probable cause for Such appeal With the clerk of the court. ")

23 California Rules of Court, Title 8, Division 1, Chapter 3, Article 1 Rule 8308 - Time to appeal. ("(A) Normal time. Except as provided in (b) or as provided by law Otherwise, a notice of appeal [for a California felony appeal] and any statement required by Penal Code section 1237.5 must be filed Within 60 days after the rendition of the judgment or the making of the order appealed Being. Except as provided in rule 8.66, no court May extend the time to file a notice of appeal. ")

24 California Rules of Court Title 8, Division 2, Chapter 3, Article 1 Rule 8853, subdivision (b) - Time to appeal. ("(A) Normal time. A notice of [a misdemeanor California] appeal must be filed within 30 days after the rendition of the judgment or the making of the order appealed Being. If the defendant is Committed end before judgment for insanity or narcotics addiction, the notice of appeal must be filed within 30 days after the commitment. ")

25 People v. Gallardo (2000) 77 Cal.App.4th 971, 987. ("A claim That the defendant was deprived of effective representation of counsel is not an Appropriate basis for relief by writ of coram nobis and must be raised on appeal or by petition for writ of habeas corpus instead. ")

See also Sandra Williams, Motions to Vacate Based on Immigration Consequences , OC Lawyer, June 2011.

26 Penal Code 1473 (a) PC. ("Every person unlawfully imprisoned or restrained of His liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of Such imprisonment or restraint.")

27 Same.

28 See People v. Chien, (2008) 159 Cal.App.4th 1283, 1290. ("We find no basis to close up commercial That the statute grants the trial court broad authority to vacate a conviction based on any mistake or deficiency of counsel related to immigration advisement of adverse .. Consequences We agree THEREFORE That Lacked the court jurisdiction to address a claim of ineffective assistance of counsel in the context of a motion section 1016.5 This ruling is likely to leave defendant without a remedy, a claim of ineffective assistance of counsel is not a Generally proper basis for a petition for writ of error coram nobis, the time for appeal of the judgment has long since passed, and defendant is no longer in custody for purposes of a writ of habeas corpus. ")

29 Same, at 1286.

30 Same, at 1290-1291. ("Although unfortunate, the lack of an available remedy is not a sufficient basis to extend the applicability of an express statutory remedy.")

31 Padilla v. Kentucky, (2010) 130 S.Ct.1473, 1486-1487. ("Taking as true the basis for His motion for postconviction relief, We have little difficulty concluding That Padilla has Sufficiently Alleged That His counsel was constitutionally deficient. Whether Padilla is Entitled to relief will depend on Whether I can Demonstrate prejudice as a result thereof, a question we do not reach Because it was not passed on below. ")

32 See also People v. Lewis (1990) 50 Cal.3d 262, 288. ("To Establish entitlement to relief for [a California claim of] ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably likely to favor more determination That Would Have Resulted in the absence of counsel's failings. ")

33 Chaidez v. United States, (2013) 568 US ____, No. 11-820, at 1. ("This Court Announced a new rule in Padilla. Under Teague, defendants Whose end Became convictions prior to Padilla THEREFORE ITS can not benefit from holding.")

34 Padilla v. Kentucky, (2010) 130 S.Ct.1473, 1483.

35 Same.

36 People v. Lucas (1995) 12 Cal.4th 415, 436.

37 Penal Code 1016.5 PC - Advisement Concerning status as alien; reconsideration of plea; effect of noncompliance. ("A) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except Offenses designated as infractions under state law, the court Shall administer the following advisement on the record to the defendant: If you are not a citizen, you are hereby advised That conviction of the offense for Which You Have Been charged May Have The Consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. ( b) Upon request, the court Shall allow the defendant additional time to Consider the appropriateness of the plea in light of the advisement as described In this section. If, after January 1, 1978, the court fails to advise the defendant as required by esta section and the defendant shows That conviction of the offense to Which defendant pleaded guilty or nolo contendere May Have The Consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, Shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record That the court provided the advisement required by esta section, the defendant Shall be presumed to Have not received the required advisement. (C) With respect to pleas prior accepted to January 1, 1978, it is not the intent of the Legislature That a court's failure to Provide the advisement required by subdivision (a) of Section 1016.5 Should require the vacation of judgment and withdrawal of the Constitute plea or finding grounds for a prior conviction invalid. Nothing In this section, however, Shall Be Deemed to inhibit a court, in the exercise of sound discretion STIs, from vacating a judgment and permitting a defendant to withdraw a plea. (D) The Legislature Finds and declare That in many instances Involving an Individual Who is not a citizen of the United States charged With an offense punishable as a crime under state law, a plea of guilty or nolo contendere without the defendant is Entered Knowing That Such a conviction of offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. THEREFORE, it is the intent of the Legislature in enacting esta sección to Promote fairness to Individuals Accused by Requiring Such Such cases in That acceptance of a guilty plea or plea of nolo contendere be Preceded by an Appropriate warning of the special Consequences for Such a defendant Which May result from the plea. It is Also the intent of the Legislature That the court in Such cases Shall grant the defendant a reasonable amount of time to negotiate With the prosecuting agency in the event the defendant or the defendant's counsel was unaware of the Possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction. It is further the intent of the Legislature That at the time of the plea defendant Shall not be required to disclose his or her legal status to the court. ")

38 8 USC § 1227 (a) (2) (A) (i). ("Any alien who-- (I) is Convicted of a Crime Involving Moral turpitude Committed Within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and (II) is Convicted of a crime for Which a sentence of one year or longer May be imposed, is deportable. ")

39 See People v. Barrera (2010) Cal.App.4th - 2010 WL 2338125. See also People v. Borrell (2010) Cal.App.2d - 2010 WL 4868115.

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