Writs of Habeas Corpus 

A writ of habeas corpus is used to challenge the lawfulness of imprisonment, conditions of confinement, or other actual or constructive restraint on personal liberty. This writ is typically used to challenge the validity of the petitioner's conviction or sentence when facts supporting the claim are not apparent from the trial record. A writ of habeas corpus can be a tool used to vacate a conviction for immigration purposes if the defendant did not know that the conviction he or she entered into would cause them to suffer adverse immigration consequences.

The Right to Counsel

The right to have an an attorney represent a defendant ensures that the defendant has effective counsel. Both the federal and state Constitutions give a criminal defendant the right to assistance of counsel. The right to counsel entitles a defendant to effective counsel. Specifically, it entitles a defendant to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. Under this standard a defendant may reasonably expect that before counsel undertakes to act at all he will make a rationale and informed decision on strategy and tactics founded on adequate investigation and preparation. To prevail on his claim of ineffective assistance of counsel, respondent must demonstrate;(1) counsel's performance was deficient and (2) he was    prejudiced by the deficiency.

Raising A Claim of Ineffective Assistance of Counsel

The appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by a petition of a writ of habeas corpus. Both the United States Constitution and the California Constitution give a criminal defendant the right to assistance of counsel.

The right to counsel entitles a defendant to effective counsel. The standard against which counsel's effectiveness will be measured is that of "reasonably competent" attorney who acts as a "dilegent conscientious advocate." Under this standard a defendant may reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. In short strategic choices made after inadequate investigation fall short of providing effective assistance if "reaasonable professional judgment" would not support the limitation on investigation. In order for a defendant to demonstrate that ineffective assistance requires reversal of his convictionb he must demonstrate first, that his counsel's performance was deficient, and second, that he was prejudiced by that deficiency.

The American Bar Association's Standards for Criminal Justice

This standard requires defense counsel to aid the defendant in reaching a decision regarding a plea agreement by advising a defendant, after appropriate investigation, of the alternatives available and of considerations deemed important by defense counsel or the defendant in reaching a decision
A Guilty Plea Must Be Made Voluntarily

Before a court can accept a defendant's plea, a court must first make a finding that a guilty plea (guilty or no contest) was made voluntarily, knowingly, and intelligently by the defendant entering the plea. (In re Johnson (1965)). Case law has held that a prosecutor and the court can later prove that a defendant entered a plea voluntarily, knowingly, and intelligently if the court docket or minute order states that the plea was entered "knowingly, intelleigently and understaningly made". (People v. Garcia (1979). 

Boykin- Tahl Rights: A Defendant Must Be Advised of His or Her Rights

Convictions based on a plea of guilty must also be supported by a record of the plea that contains direct evidence that the accused was advised of the right to jury trial, to confront witnesses, and against self- incrimination, and that he or she "kowingly and intelligently" waived each of those three rights. The court record must also show that the defendant knew both the nature of the chanfe and the consequences of entering a plea of guilty. (Boykin v. Alabama (1969) In re Tahl (1969))

The Boykin- Tahl rights are a powerful protection for defendants accused of crimes. These protections extend to defendants that are entering a plea of guilty or no contest.

 A Defendant Must Be Advised of the Consequences of the Plea

To aid the defendant in reaching a decision regarding a plea agreement, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and of considerations deemed important by defense counsel or the defendant in reaching the decision. Before a person accussed of a crime can enter a plea of guilty or no contest in court before a judge, the judge must advise the defendant of the direct consequences of the plea. (Bunnell v. Superior Court (1975)). Judges ensure that a defendant understands what they are doing by making a defendant fill out a form with his or her attorney. If the defendant does not speak English then an interpreter will read the form to the defendant in his or her language. This form has several different names depending on the court and is referred to as a  "change of plea form" or a "Tahl Form" or even an "advisement of rights form. Whatever the court calls the form it essentially asks the defendant to intial away rights and disclosures of consequences of entering the plea to a conviction.

You Must Knowingly, Intelligently and Voluntarily Waive Your Constitutional Rights

Entering a plea to a criminal conviction requires a defendant to waive his or her Constitutional rights. Regardless of citizenship status, defendants in misdemeanor and felony cases must be infomed of explicitly waive their Constitutional Rights before entering a plea. (People v. Sumstine (1984)) These Constitutional Rights are listed below;

• Right to Counsel
• Privilege against compulsory self- incrimination
• Right to trial by jury
• Right to confront accused
  

The court record must also reflect that the defendant is aware that the charge to which he or she is pleading guilty is a consitutionally valid charge. (In re Tahl (1969))

The court in the Soriano decision held a defendant received ineffective assistance of counsel where counsel provided only a pro forma warning that defendant's guilty plea could have immigration consequences without researching the specific consequences of the plea. Pursuant to People v. Soriano

Waiving the Right to Counsel

According to the California Constitution an accused defendant unrepresented by counsel must be advised of and waive the right to counsel before entering a plea of guilty or no contest. Before the court must be satisfied that the defendant understands that he or she has the right to an attorney, and a defendant who does not wish to be represented by counsel must so state in open court. (People v. Chadd (1981)).