August 24, 2009 By Wallin & Klarich

The California Supreme Court ruled in March 2009 that immigrants who are facing deportation may no longer rely on two common post-conviction challenges: the legal procedures of a writ of habeas corpus or a writ of error coram nobis that provide post conviction relief if immigration consequences have been altered. The courts ruled in two separate cases, People v. Kim and People v. Villa, that these options would no longer be available to a defendant once they have served a sentence and are no longer on parole or probation. This article will examine a few key points regarding how the ruling affects the rights of immigrants at risk of deportation.

California Criminal Appeals: Revised Rights
To begin with, in People v. Villa, the California Court of Appeal considered Villa’s writ of habeas corpus because even though he completed probation, he was in “custody” from a 1989 conviction. However in the end, the California Supreme Court refused the writ, deciding that Villa was neither in constructive or actual state custody and therefore could not be issued the writ of habeas corpus, which would have provided legal action to seek relief from possible unlawful detention.

The court ruling means that once the defendant is no longer “in custody”, it is too late for the state courts to entertain either writ. Many immigrants and criminal defense lawyers do not fully realize these consequences when pleading to the criminal charge. Often a criminal defense attorney will advise a defendant to plead guilty to avoid incarceration without investigating the immigration penalties. A skilled California criminal defense attorney should be aware of immigration intricacies, and to know their client’s immigration situation before advising them to plead guilty to a charged offense.

What Should You Do Now?
Contacting an experienced Los Angeles criminal defense attorney who can help defend your rights is worth considering if you are facing criminal charges as an immigrant. At Wallin & Klarich, we can help answer your questions regarding this rather complex change to our legal system. It is important for you to know your legal options. Contact Wallin & Klarich today by calling 1-888-280-6839 or visit for more information.

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