grounds, (see Matter of S, 7 I&NDec. 370 will usually have to be made by habeas mation was presented, or that it was dis-(BIA 1956), but doesn't preclude deporta- corpus since the defendant's alien status missed because based on mistake, falsetion on grounds other than 1251(a)(4) will rarely be shown in the trial record. information, etc. Also must show nocharge.Tumas decision focuses on whether felony convictionin last five years, and didIf entity other than governor has trial court should have realized that defen- not receive conditional discharge orsupreme authority to grant pardon and dant was an alien. Key issueshould be, in- deferred adjudication for arrest indoes, effective to bar deportation. Mafter stead, what the defendant could have question.of C.R., 8I&NDec. 59 (BIA 1958); Mat- known about effect of conviction.ter of D, 7 I&N Dec. 476 (ElIA 1957). Similar statute. in California was held C. Effect: Allows denial of arrestrecordIf pardon unobtainable under state to provide good cause for withdrawal of in any context except testimony under oathlaw, then conviction cannot be used as guilty plea if possibility of imigration con- in a "criminal proceeding." INS matters,. basis for deportation under 241(a)(4). Mat- sequence is shown. Peoplev. Guman, 172 including deportation hearings, are civil inter ofE. V,, 5 I&N 194 (BIA 1953); Mat- Cal. Rtr. 34 (1981). nature.ter of H, 6 I&N 90 (BIA 1954).Where counsel fails to advise ofdeportation consequences, plea can be va- D. Value in INS Cases: Would allow theVacation of Judgment cated based on ineffective assistance of alien tolegally avoidmentioningacriminalcounsel. Edwards v. StateofFlorida. 393 arrest which might point to a ground ofA. State Court: So.2d 597 (Fla.App. 198I), review den., deportation that does not requirea convic-'. Remedies:402 So.2d 613 (Fla. 1981); Common- tion. <strong>For</strong> example, expunction of an arrestWithdrawal of plea of guilty. wealth v. Wellington, 451 A.2d 223 (Pa. for selling marijuana could avoid exclusionPost-conviction writ of habeas 1982). under 8 USC 1182(a)(23) for "reason tocorpus. Where defendant enters plea pursuant believe" alien is involved in drug2. Grounds: to plea bargain and bargain not followed trafficking.Newly-enacted Art. 26.13, (e.g., failure to grant JRAD), especiallyTexas Code of Criminal Procedure: when not advised of right to withdraw plea E. First Offender Statutes:(a) Prior to accepting a plea of guilty or pursuant to state laws. People v. Johnson, 1. Fedeal: former 21 USC 844@)(1),a plea of nolo contendere, the court shall 10 Cal. Ap. 3d 868 (1974). repealed as of 11-1-86. Seenew 18 USC,admonish the defendant of3607 for similar provision, not yet con-. . . (4) the fact that if the defendant is B. Federal Court: strued by courts.not a citizen of the United States of Am&- * Extremely difficult to obtain. <strong>For</strong> any person charged withea, a plea of guilty or nolo contendere may No obligation to warn of possible simple possession of narcotics wifhoutresult in deportation, the exclusion from deportation consequences because is a col- previous conviction for same offense.admission to this country, or the denial of [ateml consequence. Fruchhnan v. Kenton, Court may defer proceedings,naturalization under federal law. 531 F.2d946 (9th Cir. 1976); Steinsvikv. without adjudication of guilt, and place(c) In admonishing the defendant. ..sub- Vinzant, 640 F.2d 949 (9th Cir. 1981). defendant on probation for up to one year.stantial compliance. ..is sufficient, unless See FRCrP 32 and 35, 28 USC Upon successful completion ofthe defendant affirmatively shows that he 2255 and 28 USC 1651(a) (coram nobir). probation, case is dismissed and no conwasnot aware of the consequences of his Ineffeciive assistance of counsel viction is deemed to have occurred.plea and that he was misled a harmed by argument-see Stradler v. Garrison, 611 Person only eligible once.the admonishment of the court. F.2d 61 (4th Cir. 1979); see also U.S. v. Under 844(b)(2), arrest wasCalifornia, Massachusetts, Oregon, Russell, 686 F.2d 35 (D.C. Cir. 1982). deemed never to have occurred whereper-Connecticut and Washington have similar Motion to reduce sentence under son was 21 at time of commission oflaws. Rule 35 negates first sentence, (Matter of offense.Texas statute does not specify the Martin, 18 I&N Dec. 226 (BIA 1982)) Efict: not deportable under 8result of a failure to provide the warning. (Colorado version of Rule 35) but must be USC 1251(a). Maner of Werk, 16 I&NOnly Texas decision is Tomos v. State, made within 120 days of sentencing (unless Dec. 234 (BIA 1977); may still be exclud-707 S.W.2d221 (Tex.App.-Houston [Ist sentence illegal). able in drug cases under212(a)(23), whichDist] 1986), petition for discretionary Rule 35 amended effective Novem- does not require a conviction.review fded. In Tomas the Court of Ap- ber 1, 1986 to be much less useful in such 2. State:peals held that the appellant failed to meet case. Person sentenced under statutethe requirements of subsection (c), above.equivalent to 21 USC 844(b)(1) is notsub-<strong>The</strong> record did not indicate the defendant's Expunction ject to deportation for that offense. Mattercitizenship but there were numerous refer-of Werk, suptn; Matter of Haddad; 16 I&Nences to his activities in Canada and to his A. Aurhority: Art. 55.01 et. seq., Texas Dec. 253 (BIA 1977); Matter of Kaneda,eight years of residence in the US. Code of Criminal Procedure. 16 I&N Dee. 667 (BIA 1979); Matter ofIf the defendant must prove actual Sedo, 17 I&N 550 (BIA 1980).harm (such as imminent deportation) under B. Requirements: Essentially must show Not applicable if state statutethe Texas warning statute, the challenge that, after arrest, no indictment or infor- permits use of conviction for some state20 VOICE for the <strong>Defense</strong> /February 1987
&st: W' stahlie -ply withCongmsiand intent to give second uppormnityin life without cmviciipn fernaidingfor some state puwse? &n&, sup.Plea of guilty, though, can bemd as an Ws&n m diser&nary determinationof eligibility for vdwy.f"ydeparture eiren though m't automaticallypreclude eligihilily @want to 8 USef l(ll(f)(33. Mamr af Seda, sup.D. YWh Offders.Fe&d YOU@ Garreetions Act, former18 USC 5a05-5026, is repded as of10-12-84.* Savings clausesav~ somehenefitsfor eliibic slim for offenses cdttedbefore repeal. See also US. v. Ro~mo,U.S.D.C. NW M ~ iNO. a CR-84-170[l I-%84).Young AduIt Offendexs Art @orages 22-25], 18 USC4216, repealed =of11-1-86.E. Swrun@ry & Texas Sfafutes fop Aemovalrf DiSabiIZttap:1, P~olmfwi: Sucfim&l completkmof phatim under Art, 42.1Z 8wttlon 7,C.C.P., which providesfor removaI of *dlpenalties and diibilitic%," will nonwnoveeffects of conviction for 3mmi~:ratioa purposes.Mmer of &it&, I.D. 2965 (BIAl984).2. Defe~rad AMwq: Under Section3d of Aft. 42.12, the dehaant givendeferred adjudication is deemed not to hawbeen mnvicted for indgcation purptges.Matter of Garcia, I.D. 2995 (BTA 19851.3, C~n&iond Diwharge for First(ZftEensa: Section 4.12 af Art. 4476-15,Texas Controlled Subatam& AcZ, allowsp~cedwe similar to deferred adjudfmtiou,and ape&cally states that "a disshm ordi8misd derthis section shalt not hedeemed a conviction."* By analogyto Maner of Catdo,conditha1 di%h;rrge would avoid immigrationcomqueufas. See Gear& v.557 S.W.Zd 787 (WhApp, 1977).General Reference:IMMIGBATIDN LAW & CRTMES, treaiiseprmlrxlby Nationd Immigration Pmjectand pubW by Clark &&an a-*****~mwimm umw ~IU~~~LR~W'EIONdW&Wi?EWA7lDdEluV@ 39XCLuSroYdeposation of alienmvieted ofTO THE HOM6RABLE JUDGB OF acrime or crimes shall not apply. .,SAID COURT:if rhe court wntenciilg such alien fotCOMES NOW the Defendant, - such crimes shall make) at the timeby ahd wugh hh attorney of rewd, and of first &ping judgment I)r pas&files this Motion for a Jud'iial Reconmen- ing sentence or mithin thirty day8&tion kgairrr;tDqm@tion and usio ion. therenftw, a-recomond&en totbeIn support of this Motion, Defendant Attorney General that such aliennotwould mtfully show the Court that: be deport&, dpe notice having been1.This Court has the per4 as paVt of itsauthority to impe a judgment and sen- If this Court determim to grant this Moteweupon Defendant, to cletermine tion, its Chdar, althoua termed a ''Rwontwhetherany convi&m had in this case rnendatfonn'@ the AItarney General of themay be used as a hasis for the deportetionor exclusion of Defendadt from Sb UUnit-ed Sh'tatH. This power is granted to theC m by Section 241@)@) 2)f thebmigra-<strong>The</strong> provisions. . . r@pecting UleUnited Stare, In f&t will be binding uponthe Attorney Gem1 and theImmigratianand Naturalization Service.If this Caurt decides to deny this Mo-
- Page 1 and 2: -the Texas (Robert Richard Thornton
- Page 3 and 4: PRESIDENT'S REPORTIKnox JonesIt's w
- Page 5 and 6: The Effective and Judicious Use ofO
- Page 7 and 8: with an mthoritatim? qmseto a quest
- Page 9: Federal Sentencing in the 1980s and
- Page 12 and 13: dividual or $10,000,000 if the defe
- Page 14 and 15: procedure. When prehearing assessme
- Page 16 and 17: when non-security considerations ou
- Page 18 and 19: Aliens As Criminal Defendants: Stra
- Page 22 and 23: tion, then in certain circumstances
- Page 24 and 25: Search Warrants ana ~rrest Warrants
- Page 26 and 27: 2d 143 (Tex. Cr. App. 1969). The cr
- Page 28 and 29: specific intent to defraud or harm
- Page 30 and 31: 2d 143 (Tex. Cr. App. 1969). The cr
- Page 32 and 33: specific intent to defraud or harm
- Page 34 and 35: Ex parte James Harvey HAWKINS, No.
- Page 36 and 37: parole eligibility was element of p
- Page 38 and 39: CAPITAL MURDER SPECIAL ISSUES -- AC
- Page 40 and 41: Joe Louis ARRIETA, No. 02-85-202-CR
- Page 42 and 43: Appeals. In the meantime, however,
- Page 44 and 45: sentation or statement made in reck
- Page 46 and 47: Appeals. In the meantime, however,
- Page 48 and 49: sentation or statement made in reck
- Page 50 and 51: the subject of suit is within the c
- Page 52 and 53: From the Inside OutSo the Judge Wil
- Page 54 and 55: m.The P.S.I. is an imporfanant docu
- Page 57 and 58: EthicsPropriety of Supplementing th
- Page 59 and 60: New Motions7he following Motion for
- Page 61 and 62: Respectfully submitted,JOSEPH (SIB)
- Page 63 and 64: where a juror is susceptible to a c
- Page 65 and 66: Letter to the Editor:It is wonderfu
- Page 67 and 68: serving his time. It also allows re
- Page 69 and 70: S.W.2d 249 (Tex.App. -CorpusChristi
- Page 71 and 72:
In and Around Texasby John BostonBy
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