Post-conviction Relief for Immigrants in Las Vegas, Nevada Modifying or Vacating Past Criminal Convictions

Post-conviction relief provides avenues for aliens in Nevada who have been convicted of deportable crimes to remain in the U.S. legally. Common methods of post-conviction relief include motions to withdraw pleas, motions for a new trial, appeals, and writs of habeas corpus. Immigrants with federal criminal convictions also have the option to petition the court to vacate, set aside or correct the sentence.

Below our Las Vegas post-conviction relief attorneys discuss the various legal procedures in Nevada that can relieve aliens of deportable status by vacating their convictions or shortening their sentences. Click on a method of post-conviction relief below to go directly to that section:

• 1. Motion to withdraw a plea
• 2. Motion for a new trial
• 3. Appeal
• 4. Writ of habeas corpus
• 5. Motion to vacate, set aside or correct sentence

1. Motions to withdraw pleas

Non-citizens who get arrested in Las Vegas and throughout Nevada are understandably very scared and may feel pressured to agree to a plea bargain just to get the case over with as quickly as possible. But often these non-citizens plead guilty to an offense without knowing it is deportable, and suddenly they are thrust into Nevada immigration court for removal proceedings. However, these aliens may be able to withdraw their guilty plea and start fresh…

Also called a “motion to vacate conviction” or “motion to vacate the judgment,” a motion to withdraw a plea in Nevada criminal cases is when the defendant requests the court to void his/her plea and resume the case as if the plea never occurred. The defendant may file a motion to withdraw a plea any time prior to sentencing (which is when the judge imposes penalties on the defendant).¹

Grounds for a motion to withdraw a plea

Courts consider the “totality of the circumstances” when deliberating whether to grant a motion to withdraw a plea. Common grounds for withdrawing a plea in Nevada include:

• Ineffective assistance of counsel, which means that the defense attorney’s incompetence prejudiced the defendant’s case.
• Ineffective assistance of an interpreter/translator, which is an issue for immigrant defendants who may not speak English.
• The plea was not made knowingly, voluntarily, and intelligently, which is an issue for immigrants who do not realize what their plea means.²
• The defendant was not informed that probation may be unavailable, which is an issue for immigrants because the length of their jail sentence often determines whether they are deportable.

In short, a motion to withdraw a plea gives immigrant defendants a second chance to negotiate a better plea deal that has no deportation consequences. And depending on the case, the defense attorney may be able to persuade the prosecution to drop the charges completely.³

2. Motions for a new trial

A criminal trial is an incredibly complicated legal gauntlet that hinges on thousands of rules of procedure, evidence, and ethics. It is inevitable that mistakes occur during trial, and some of those mistakes may be significant enough to delegitimize the trial results. For immigrants who are found guilty of a deportable crime after a flawed trial, getting a new trial can be the difference between facing removal and staying legally in the U.S.

Like it sounds, a “motion for a new trial” is when the defendant asks the court to nullify the trial and schedule an entirely new trial. The purpose of a new trial is meant to correct an injustice that happened in the first trial. If an immigrant defendant is then acquitted at the new trial, he/she then should not face deportation.⁴

Grounds for a motion to for a new trial

There are various grounds for asking for a new trial in Nevada. Some of the common reasons include the following:

• Ineffective assistance of counsel
• Insufficient evidence
• Conflicting evidence
• Newly discovered evidence
• Judicial error
• Prosecutorial misconduct
• Jury misconduct
• Loss of trial transcripts or records
• Erroneous admission of evidence
• Perjury

Note that defendants usually have only seven (7) days after the guilty verdict to file a motion for a new trial.  But if new evidence comes to light, the defendant may file a motion for a new trial up to two (2) years after the guilty verdict.⁵

3. Appeals

Though not technically considered “post-conviction relief,” an appeal is when a defendant who was convicted of a crime asks a higher court to review the conviction and/or the sentence.

For example, Clark County District Court cases in Las Vegas can be appealed to the Nevada Court of Appeals and then the Nevada Supreme Court. As for federal appeals, convictions in Nevada Federal District Court can be appealed to the Ninth Circuit and then the U.S. Supreme Court.

For an immigrant convicted of a deportable crime, an appeal is an opportunity to be taken out of the deportable category: If the appellate court overturns the conviction, then the immigrant is no longer deportable for that crime. If the appellate court remands the case for a new trial, the immigrant has another chance to get acquitted at trial and remain undeportable. And if the appellate court reduces the sentence enough, then the conviction might no longer be considered a deportable crime.⁶

(If the appellate court affirms the conviction, then the defendant can pursue filing a writ of habeas corpus, discussed below in section 4.)

Grounds for appeal

Grounds for appeal are legal or factual errors that occurred during trial which may have negatively influenced the verdict and denied the defendant his/her constitutional right to a fair trial. Typical grounds of appeal in Nevada include:

• Insufficient evidence
• Judicial error
• Prosecutorial misconduct
• Erroneous application of a law or regulation
• Improper jury instructions

Note that if the trial occurred at the district court level in Nevada, the defendant has thirty (30) days from the date he/she was convicted to commence the appeals process. If the case was in justice court or Nevada federal district court, the defendant has only ten (10) days.

Also note that the appellate court looks only at the records and the transcripts of what occurred in trial court. The defendant may not introduce new evidence or testimony during an appeal.⁷

4. Writs of habeas corpus

People who have exhausted all other avenues for getting their convictions overturned or sentences commuted have one final shot for relief in Nevada: Filing a writ of habeas corpus, which challenges the legality of keeping the defendant in custody. For non-citizens convicted of a deportable crime, petitioning for habeas corpus may be the final opportunity to get out of removal proceedings.

Writs of habeas corpus progress relatively quickly, and the judge typically renders an answer within a few weeks. If the judge grants the petitioner’s writ of habeas corpus, the person can no longer be held in custody for the cause that put him/her in prison to begin with. ⁸

Grounds for habeas corpus

There are nine basic grounds for habeas corpus relief in Nevada:

1. When the jurisdiction of the court or officer has been exceeded.
2. When the imprisonment was at first lawful, yet by some act, omission or event, which has taken place afterward, the petitioner has become entitled to be discharged.
3. When the process is defective in some matter of substance required by law, rendering it void.
4. When the process, though proper in form, has been issued in a case not allowed by law.
5. When the person having the custody of the petitioner is not the person allowed by law to detain the petitioner.
6. Where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law.
7. Where the petitioner has been committed or indicted on a criminal charge, including a misdemeanor, except misdemeanor violations of [traffic laws] without reasonable or probable cause.
8. Where the petitioner has been committed or indicted on any criminal charge under a statute or ordinance that is unconstitutional, or if constitutional on its face is unconstitutional in its application.
9. Where the court finds that there has been a specific denial of the petitioner’s constitutional rights with respect to the petitioner’s conviction or sentence in a criminal case.

In addition, deportable aliens may file a writ of habeas corpus on the grounds that Immigration and Customs Enforcement (ICE) has been detaining him/her beyond the statutory 90-day removal period.

Note that a person may bring a habeas corpus petition within one (1) year after the date of his/her criminal conviction or the date the appeal was decided. But for good cause shown, it may be possible to file a writ of habeas corpus after this time frame has expired.

Also note that a person may file a writ of habeas corpus in federal court if his/her Nevada habeas petition was denied or if he/she was convicted of a federal crime.⁹

5. Federal motion to vacate, set aside or correct sentence

People currently in custody for a federal criminal conviction may be able to file a “2255 motion” to challenge their conviction and sentence. The official name for this kind of motion is “motion to vacate, set aside, or correct sentence.”

Immigrants who are facing deportation for a federal crime can pursue a 2255 motion in an attempt to get a judgment overturned, a new trial ordered, a sentence reduced or a discharge from prison. If granted, a 2255 motion can serve to remove the non-citizen from the deportable category and therefore allow him/her to remain in the U.S. (depending on the case).¹⁰

Grounds for a 2255 motion

Common grounds for a 2255 motion in Nevada include the following:

• Ineffective assistance of counsel
• Prosecutorial misconduct
• Lack of jurisdiction
• Unconstitutional sentence
• The sentence was longer than the legal maximum
• Due process violations

2255 motions have to be filed within one (1) year of final sentencing. The judge may or may not hold an evidentiary hearing (which is like a mini-trial) in order to help him/her determine whether to grant the 2255 motion.¹¹

Call a Las Vegas, Nevada immigration attorney…

It is a lot easier to plea down or dismiss criminal charges while a case is still open than it is to modify or vacate an actual conviction. So if you are an alien who has been arrested or charged with a crime that may be deportable, do not delay in calling our Las Vegas immigration attorneys to try and save your resident status. However, as we discussed above, post-conviction relief may still be possible. Immigrants and non-citizens are invited to call us for a consultation.

Convicted in Colorado? See our article on post-conviction relief in Colorado.

Legal References