The California Supreme Court yesterday decided two cases in which petitioners attempted to void convictions for which they were no longer in custody or on probation in order to prevent deportation. In People v. Villa Avelino Ceja Villa, a Mexican citizen, filed a petition for a writ of error coram nobis while in immigration custody in Alabama based on a 1989 California drug conviction. The Court of Appeal considered the writ to be a writ of habeas corpus since he was in custody based upon the 1989 conviction even though his probation had long since been terminated. But it denied the writ on the grounds that he was not in custody solely on the California conviction. The California Supreme Court denied the writ but on different grounds. It found that he was neither in constructive or actual state custody and therefore it could not issue a writ.

The Supreme Court also denied a writ of coram noblis in People v. Kim Kim was born in South Korea in 1977 and came to this country as a young child with his parents.His criminal record started as a juvenile. He was convicted of first degree burglary for breaking into a tool shed in 1996. Later that year he was convicted of petty theft and second degree burglary. The following year he and two friends stole under $100 of merchandise from a Costco. But with his record he ended up pleading to felony petty theft with a prior and he admitted a strike violation. While the judge struck the strike at sentencing he was sent to prison for three years on the theft and the probation violation.

In 1998 the INS began deportation proceedings. Since his theft sentence was for at least a year it was considered an aggravated felony with mandatory deportation. He completed his sentence and his parole. But the INS amended its petition to include a discretionary deportation based upon two convictions for crimes of moral turpitude.

Kim filed a nonstatutory motion to reduce the sentence on the petty theft with a prior to 364 days. It was granted and now any deportation would be discretionary. A Federal immigration judge granted his motion to remain in the country. But the INS appealed and the BIA ordered Kim deported. He then filed the writ of coram nobis. But the California Supreme Court denied the writ. First it pointed to three procedural errors. In pleading the writ he failed to show due diligence. He did not explain why it took so long after 1996 for him to file the writ. The second procedural error is that Kim did not avail himself of other remedies. If he had filed earlier he would still have been in actual or constructive custody and he could have filed a writ of habeas corpus. Coram nobis is only to be used when there is no other remedy. The final procedural error, according to the Supreme Court was the piecemeal method of fighting the deportation in state court. The Court all motions should have been filed simultaneously.

While the Court found the procedural errors it denied the writ on its merits. To obtain a writ of coram nobis a defendant must show

(1) Petitioner must ‘show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.’
(2) Petitioner must also show that the ‘newly discovered evidence does not go to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.’ This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. (3) Petitioner ‘must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.

Kim failed to show that there were facts that were not known to him that if he had presented to the trial judge would have result in his exoneration. The facts he argues, that he would be deported, that if deported he would be imprisoned for his refusal to serve in the Korean military on religious grounds, that his trial attorney was ineffective in not investigating the immigration consequences of the plea, and that his trial attorney was ineffective in not negotiating an alternate plea are not issues of fact. They are issues of law which cannot be the basis of a writ of coram nobis.

The end result is that neither habeas corpus or coram nobis is likely to correct errors in pleadings after the period of probation or parole has ended.