Maryland Post-Conviction Remedies

OVERVIEW

Sometimes, non-citizens plead guilty to criminal offenses that incur immigration consequences. Sometimes, non-citizens are convicted of criminal offense in court. When there is no relief from deportation in the immigration court, often the only remedy is to attempt to vacate or amend the conviction by means of a post-conviction remedy. These remedies attempt to discover constitutional errors in the underlying criminal convictions that could not have been resolved on direct appeal. The most common constitutional error is called ineffective assistance of trial counsel when the defendant’s trial attorney made a mistake or failed to do something he should have done.

In Maryland there are two types of post-conviction remedies:

  1. The first form of post-conviction relief is a called petition for post-conviction relief pursuant to the Uniform Post Conviction Act of the Criminal Procedure Article Section 7-101, et. seq. To be eligible for this form of post-conviction relief, the defendant must be incarcerated, on parole or on probation. In post-conviction proceedings, the Defendant is guaranteed the right to a hearing and a written decision. This is very good because the court cannot dismiss the case without a hearing. A hearing is the best way to have a judge’s undivided attention on your client’s case.
  2. The second form of post-conviction relief is called a Writ of Error Coram Nobis. Coram Nobis relief is available when relief pursuant to the post-conviction petition under the Uniform Post Conviction Act is unavailable. In other words, Coram Nobis relief is available when the defendant is not incarcerated, on parole or on probation. In Coram Nobis petitions, the judge has the authority to reject the claim without a hearing. However, in general, if the client raises actionable claims, a hearing will be scheduled. Any claim that could have been raised under the Uniform Post Conviction Act may be raised in a Writ of Error Coram Nobis.
    In addition, the firm has also used the Maryland rules of the court to vacate illegal sentences or reduce a defendant’s sentence. A sentence reduction is an important device because deportation often depends on the particular offense and the sentence imposed.

The firm will use whatever means necessary to vacate your conviction. Please understand that in many cases, depending on the particular circumstances of your criminal case, post-conviction relief may not be possible. The firm will analyze your case and make a determination whether you should proceed with post-conviction remedies.

Recent Case Results

May 15, 2015 – Citizen of Yemen obtains citizenship after successful coram nobis petition

May 15, 2015 – Citizen of Yemen obtains citizenship after successful coram nobis petition

Facts: In January 2013, a citizen of Yemen entered the United States and was stopped at the border and placed in secondary inspection. Even though the citizen of Yemen had a green card, he had an 16-year old conviction for the Maryland offense of second degree assault. Border patrol released the citizen of Yemen, but he was shaken nevertheless. He sought the firm’s help.

The Firm’s Representation: In 2013, the Maryland offense of second degree assault was potentially an aggravated felony under the INA. In our client’s case, he had been sentenced to 18 months incarceration, which could have triggered an “aggravated felony” classification. The firm had no choice but to seek a belated sentence reduction by way of a coram nobis petition. Luckily, our client had no further brushes with law enforcement which always helps. The coram nobis petition was granted and our client received a probation before judgment. The firm subsequently filed an application for naturalization.

Outcome: Our client is now a citizen of the United States. This case ended up being one the most gratifying cases the firm has ever worked on. When our client first approach us, he was in medical school. Eventually, our client was approaching graduation from medical school and he was applying for residency positions. Even though our client was at the top of his class in a prestigious medical school, his conviction for second degree assault was hindering any residency program from offering him a position. After our client’s assault conviction was re-sentenced as a probation before judgment, the firm received a call from our client. He asked whether he had to indicate on his residency applications that he had a conviction. The firm told our client that, under Maryland law, a probation before judgment cannot be considered a conviction for any purpose (although for immigration purposes, a probation before judgement still remains a conviction). So, our client started sending out his residency applications that indicated that he had no convictions and subsequently residency offers started pouring in. Our client eventually accepted a residency position at prestigious hospital in Baltimore, Maryland and he is on his way to becoming a full-fledged medical doctor. Everybody makes mistakes and everyone deserves a second chance. The firm was really happy to be able to help our client reach his goals.

August 12, 2013 – Citizen of El Salvador is released from ICE detention after very nearly being physcially deported

August 12, 2013 – Citizen of El Salvador is released from ICE detention after very nearly being physcially deported

Facts: A citizen of El Salvador was detained by ICE – he had no status and a conviction for possession of marijuana. He hired a very reputable immigration attorney. Nevertheless, the immigration attorney did not know how to deal with a Maryland conviction for possession of marijuana. The Immigration Attorney asked the Immigration Court to grant the citizen of El Salvador voluntary departure, which was granted on May 1, 2013. The citizen of El Salvador’s family was frantic because they did not want him to be deported. The family came to the firm on May 15, 2013.

The Firm’s Representation: First, jumped into action an filed a coram nobis petition in the Maryland state court. Second, the firm filed a motion to reopen and a stay of deportation with the Immigration Court. Time was ticking because ICE wanted to physically deport our client. After several phone calls to the Immigration Court clerks, the stay was granted. Two days later, the detention center asked our client to pack his belongings because he was on the deportation list for the day. Even though the firm had previously contacted ICE and informed them of the stay, the detention center had not received notice. After several further phone calls, our client was taken off the deportation list. The firm had stopped our client’s deportation with only two days to spare. After a hearing on July 26, 2013, our client’s coram nobis petition was granted. The firm then filed a joint motion to reopen and a joint motion for bond in the Immigration Court, with the permission of ICE, and our client was released from ICE custody on $3,000.00 bond on August 12, 2013.

Outcome: Our client lost everything when he pleaded guilty to possession of marijuana – he lost his TPS status, he was placed in removal proceedings, he was detained, and he was almost deported. Tragically, our client was completely innocent of these charges which was borne out on postconviction. Our client is now in the process of getting his TPS back and possibly seeking cancellation of removal in the Immigration Court.

May 2, 2013 – Citizen of El Salvador is released after one year of ICE detention

May 2, 2013 – Citizen of El Salvador is released after one year of ICE detention

Facts: A citizen of El Salvador was detained detained by ICE on May 8, 2012 and ordered deported on December 3, 2012. His fiance came to the firm for help.

The Firm’s Representation: First, the firm had to reopen our client’s immigration case. In early January 2013, the firm filed a motion to reopen with the Immigration Court, which was eventually granted. Then, the firm reviewed the underlying reason for the ICE detention – our client’s conviction for sex offense in the fourth degree. Unfortunately, our client had received really bad advice from his criminal defense attorney who advised our client to decline an offer of Probation Before Judgment from the sentencing judge. After analyzing the conviction and sentencing, the firm came to the realization that if our client had accepted the Probation Before Judgment, he would not have been subject to mandatory detention in the immigration context. The firm immediately filed a petition for post-conviction relief in the Circuit Court of Maryland.

Outcome: On April 22, 2013, the post-conviction petition was granted. On May 2, 2013, based on a motion for reconsideration of bond in the Immigration Court, bond was granted and our client was released from ICE custody later that same day. Naturally, our client and his family were thrilled to be released after almost one year of detention that was caused by bad advice from his criminal defense attorney. Our client’s immigration case remains pending in the Immigration Court, but our client now had several options available to him to get into a legal status.

December 6, 2012 – Citizen of Mexico receives coram nobis relief and a reduced sentence in assault case

Facts: A citizen of Mexico was arrested at his home and placed in removal proceedings. His immigration attorneys came to the firm for help with their client’s Maryland state court conviction for assault. The citizen of Mexico’s conviction rendered him ineligible for bond and most forms of relief because it was classified as an “aggravated felony” in the immigration context.

The Firm’s Representation: In this case, the firm worked collaboratively with our client’s immigration lawyers. The firm filed a coram nobis based on a violation of our client’s Sixth Amendment right to effective assistance of counsel – our client was never informed of the immigration consequences of his plea.

Outcome: On December 6, 2012, the judge granted the coram nobis and granted relief and reduced our client’s sentence for the charge of second degree assault to 364 days. Our client’s conviction could no longer be classified as an “aggravated felony.” As a result, our client can now apply for bond and he can apply for the relief of cancellation of removal.

June 1, 2012 – Coram Nobis relief granted in 12 year old shoplifting case

Facts: In 1998, a non-citizen defendant pled guilty to the Maryland crime of theft under $300. Even though the non-citizen received a probation before judgment, the crime could have supported a charge of deportation. The non-citizen was a green card holder and wanted to apply for citizenship. The non-citizen contacted the firm for help.

The firm’s representation: The firm reviewed our client’s criminal case and discovered that our client had not been represented by counsel and that her right to counsel had been violated. The firm filed a Petition for a Writ of Error Coram Nobis.

Outcome: On June 1, 2012, our client’s coram nobis was granted, and our client pled guilty to petty theft, which has little or no immigration consequences.

May 28, 2012 – Petition for Post-Conviction relief denied, appeal in the Maryland Court of Special Appeal pending

Facts: In 2010, a non-citizen defendant pled guilty to attempted distribution of CDS in the Maryland Circuit Court. He was sentenced to 18 months incarceration, with all but 9 months suspended. After he finished his term of incarceration, he was picked up by Immigration and Customs Enforcement. His family contacted the firm for help.

The firm’s representation: The firm reviewed his criminal case and discovered that our client had received incorrect information concerning the immigration consequences of his plea. The firm filed a Petition for Post-Conviction Relief.

Outcome: On March 8, 2012, after a lengthy hearing, the petition was denied. Subsequently, the firm filed an Application for Leave to Appeal in the Court of Special Appeals, which remains pending.

March 28, 2012 – Paraphernalia conviction vacated upon the filing of a Coram Nobis petition, TPS reinstated

Facts: In 1999, a non-citizen defendant was convicted at trial of the Maryland offense of possession of paraphernalia. He was not represented by an attorney. This conviction caused him to lose his Temporary Protected Status (TPS). He contacted the firm for help.

The firm’s representation: The firm reviewed our client’s case and and filed a Writ of Error Coram Nobis based on a lack of counsel and lack of appointed counsel

Outcome: On December 1, 2010, our client’s conviction was vacated, three months after the firm filed the writ. Several months later, the firm filed a motion to reopen our client’s TPS. On March 28, 2012, the motion was granted and our client received TPS and a work authorization.

March 7, 2012 – Motion to reduce/modify sentence under the Maryland Rules granted, conviction vacated

Facts: A non-citizen defendant had a conviction for the Maryland offense of burglary and was sentenced to three years incarceration, all but six months suspended. Before he could begin his six month sentence, he was picked by ICE and transported to Texas to be deported. His family called the firm for help.

The firm’s representation: The firm reviewed our client’s case and believed that the court would be amenable to a reduction in the sentence to a term of incarceration under one year. The firm filed the motion to reduce/modify the sentence which was granted. The firm then entered an appearance in our client’s immigration case and successfully argued for ICE bond (the three year sentence subjected our client to mandatory detention, but the 364 sentence permitted him to get bond). Our client made bond, left Texas and returned to Maryland. He served his six month sentence and is now petitioning the court for post-conviction relief. The firm assisted the Office of the Public Defender with our client’s post-conviction petition.

Outcome: On February 14, 2012, the post-conviction petition was granted. On March 7, 2012, after nearly three years, our client’s removal proceedings were terminated. Our client was able to keep his green card and he will be able to get his citizenship in five years.

February 27, 2012 – Petition for Coram Nobis granted, on retrial, all charges dropped

Facts: In 2002, a non-citizen defendant was tried in the Maryland District Court and convicted of felony theft over $500 and unauthorized use of a vehicle. He was sentenced to 90 days incarceration, suspend all but 5 days. Many years later, he contacted the firm to see if there was anything that could be done.

The firm’s representation: The firm reviewed his criminal case and discovered that our client had requested an appeal from his attorney, but an appeal was never filed. The firm filed a Petitioner for Writ of Error Coram Nobis based on ineffective assistance of counsel.

Outcome: On November 4, 2011, the coram nobis was granted. On February 27, 2012, the State’s Attorney’s Office dropped all charges against our client. Prior to the firm’s involvement, our client had a felony theft conviction, which has been completely erased now.

February 24, 2011 – Assault conviction vacated with a petition for Coram Nobis relief

Facts: In 2009, a non-citizen defendant pled guilty to the Maryland offense of second degree assault even though he did not have a lawyer. He was sentenced to 18 months incarceration, all suspended, and placed on probation for one year. ICE placed him in 238(b) administrative removal proceedings. He was on the fast track out of the country. His wife called the firm for help.

The firm’s representation: The firm reviewed his criminal case and discovered that our client did not intelligently, knowingly, and voluntarily waive his right to counsel. The firm filed a Writ of Error Coram Nobis.

Outcome: On February 24, 2011, our client’s conviction was vacated. The firm is handling our client’s immigration proceedings, which are still pending.