Out of Custody Petitions for Post Conviction Relief

Until only recently, those no longer in custody who had not filed a petition for relief such as a habeas petition while still under some form of custody, found themselves without vehicle to seek post conviction relief.

Prior Law:

In our neighboring state of California, the legislature enacted Penal Code § 1473.6 that provided those no longer in custody to have a vehicle to overturn their convictions based upon newly discovered evidence that pointed unerringly to innocence, false testimony at trial, or other misconduct at trial.  The State placed a one year Statute of Limitations on using this statute, which requires one prove misconduct.  Unfortunately alleging prosecutorial misconduct does not go down well.  This statute was enacted to deal with the “Rampart” scandal, that made nationwide attention.

New law providing broader relief for those out of Custody.

However in January 2017 a new law went into effect in California, Penal Code 1473.7 that provides those who was not advised of immigration consequences to withdraw their pleas.  The same statute also offers less restrictive relief to those who are no longer in custody, and have claims of actual innocence.  There is no need to prove misconduct or fraud by the prosecution, something that is often fought bitterly by the prosecutors.

In addition, the State Bar of California enacted new laws for prosecutors, that adopted the ABA standards for prosecutors in California, requiring all prosecutors to address new evidence that affects the legitimacy of a conviction.  This California State Bar requirement directs prosecutors, even after a conviction has occurred, to address new evidence or other matters that affect the credibility of a conviction.  Good news for California out of custody people with convictions, the California legislature has now acknowledged the collateral consequences for those who, while no longer in custody, and done with their sentences, can obtain relief under P.C. § 1473.7.  The new law requires an application demonstrate by “preponderance of the evidence”  (more likely than not), that the conviction would not have occurred.  Also, the statute provides that a hearing “shall” (must) be conducted when a petition under § 1473.7 has been filed.

We associate with California attorneys who can evaluate your needs and help seek relief you may be entitled to.