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Habeas and Custody

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The writ of habeas corpus, at its core, is an attack on allegedly unlawful custody. Attack on the underlying criminal judgment is incidental. For this reason, if the petitioner is already out of custody by the time he files, there is no habeas jurisdiction in federal courts. See, e.g., Maleng v. Cook, 490 U.S. 488 (1989).

On Monday, the California Supreme Court will address this problem with regard to persons convicted in California courts and presently in the custody of immigration authorities because of the California convictions. Federal law provides for deportation of aliens who commit various offenses. Can they attack their state convictions on state habeas, even though not in state custody? How about coram nobis?

Update, Monday: Both opinions are unanimous, written by Justice Werdegar. People v. Villa goes through some habeas history before concluding, consistently with the federal rule, that there is no habeas to deal with the collateral consequences of a conviction when the defendant is no longer in the custody of the convicting state by even the most stretched definition of that word.  That probably means deportation for Villa due to a 20 year old charge of possession of cocaine for sale.

People v. Kim reviews the writ of error coram nobis and finds it is unavailable to knock down Kim's earlier conviction to avoid deportation. Kim is a considerably less sympathetic character with a string of offenses, and he has already gotten multiple breaks. The reductions he did receive were sufficient to move him down from mandatory to discretionary deportation, but the Board of Immigration Appeals was "unconvinced that [defendant's] long residence in the United States, his family ties and his rehabilitation outweigh his substantial criminal history and recidivism." That case is still in the Ninth Circuit, where anything is possible.

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I can certainly understand wanting to help out people who would face really harsh consequences from somewhat minor convictions (Kim would seem to be in a little bit worse of a spot, since he left S. Korea when he was six), but there is a real fairness issue here. American citizens face a lot of collateral consequences to criminal activity (particularly in the internet era), but no one would think of granting this writ for one of those issues, so why for non-citizens?

And if prosecutors are willing to be nice to non-citizen immigrant offenders after conviction, what's to say that they won't be more lenient before conviction, and if that happens, then there's a serious EPC issue. And that would be a huge huge mess.

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