NEW RULE OF LAW FOR POST CONVICTION RELIEF
By: William Marshall – Paralegal & Post Conviction Consultan - Phone: 570-609-8800
Email: mparalegal4u@aol.com
Web: www.myparalegal.bravehost.com
Now that all the cards on the table that both state and federal inmates can benefit thereby pursuant to Blakely v. Washington, 542 U. S. 296 and United States v. Booker, 543 U. S. 220, in addition to the recent U. S. Supreme Court decisions summarized by citation below, the time has never been so ripe to seek post conviction relief with the affordable legal support services of William Marshall. Don’t wait till others get ahead by the flood of petitions which will soon now follow as result of decisions made by the U. S. Supreme Court on December 10, 07 and February 20, 2008 in addition to the U. S. Sentencing Commission on December 11, 07. The decision of the U. S. Supreme Court on December 10, 07 will also bring potential relief for those whose offenses where something else other than drugs. Notwithstanding whether or not post conviction relief has been previously sought but denied, when after a conviction a ‘new rule of law’ has been created or established by statute, rule or court decision which is more favorable to an inmate than that which existed when either the offense, conviction or sentence occurred, then a new post conviction application can be entertained. Failure to cite recent cases could bar the relief sought. Don’t wait till the line for seeking relief gets longer, contact William Marshall.
Gall v. US, No. 06-7949 December 10, 2007
In reviewing the reasonableness of sentences imposed by district judges, while the extent of the difference between a particular sentence and the recommended Sentencing Guidelines range is relevant, courts of appeals must review all sentences whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion standard.
Watson v. US, No. 06–571 December 10, 2007
In the context of criminal sentencing, a person who trades his drugs for a gun does not "use" a firearm "during and in relation to . . . [a] drug trafficking crime" within the meaning of 18 U.S.C. section 924(c)(1)(A).
Kimbrough v. US, No. 06-6330
December 10, 2007
Under US v. Booker, the cocaine Sentencing Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit Court of Appeals erred in holding that a sentence outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses. A judge may determine that, in a particular case, a within-Guidelines sentence is "greater than necessary" to serve the objectives of sentencing, and in doing so, the judge may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses.
Danforth v. Minnesota, No. 06–8273 February 20, 2008
Teague v. Lane, 489 U. S. 288 (1989), limits the kinds of constitutional violations that will entitle an individual to federal habeas corpus relief, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed "nonretroactive" under Teague.
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POST CONVICTION RELIEF
I generally file at least one or more of the following motions in representing both citizens and non-citizens who have been convicted of crimes having adverse consequences as part of my removal and post conviction relief practice:
- Motions to Reduce Felony Convictions to Misdemeanors are very effective for citizens and non-citizens. These motions can eliminate the adverse consequences of felony convictions for all purposes. If granted, winning such a motion sometimes eliminates the need to report the conviction when applying for most jobs. Reduction can also eliminate the adverse immigration consequences of felony convictions that could have been used for removal/deportation purposes.
- Motions to Modify conviction(s) are brought for non-citizens whenever their prior criminal conviction(s) are classified by the U.S.C.I.S. as “aggravated felonies”. Such convictions may result in permanent removal (deportation) from the U.S. By modifying the sentence, for example, from one year to 364 days, we can change the classification from an aggravated felony to a simple felony which may not be used as a basis for deportation by the U.S.C.I.S. or by the immigration courts.
- Motions to Expunge Prior Convictions are important to citizens and non-citizens alike. Motions to expunge criminal convictions can be granted only after successful completion of probation. When granted by the court, the conviction does not have to be disclosed when asked in employment applications: ..."Have you ever been convicted of any crimes?" You can answer "no" to this question. However, the conviction does remain on your criminal record and does not eliminate adverse immigration consequences. These motions are effective in establishing the requirements of good moral character and rehabilitation for those aliens petitioning for lawful permanent residency and applying for naturalization. Expungements differ from motions granted because a person was factually innocent of the charge(s) they were arrested for. [See discussion in paragraph No. 4 below.]
- Motions to Destroy Records of Persons Factually Innocent may be brought in any case where a person has been arrested and/or prosecuted but where no conviction occurred. This motion requests the court to make a finding that the person is factually innocent of the charges for which he or she was arrested. If granted by the court, then any reference to the arrest record shall bear the notation “Exonerated” and shall not be admissible as evidence in any action. In addition, destruction of all entries and notations pertaining to the arrest record shall be accomplished by permanent obliteration. The record shall be prepared again so that it appears that the arrest never occurred. If there are no other entries contained in that person’s criminal history record other than the arrest, then the entire record shall be physically destroyed. This motion is different from an expungement of your criminal conviction following successful completion of probation. Here, the actual record of the arrest itself is physically obliterated from all government’s records so that it appears the arrest never occurred and therefore, can not be used against you. This motion is particularly helpful for non-citizens seeking to adjust their status, defend themselves in removal proceedings, and to establish good moral character when applying for a visa, lawful permanent residency and naturalization. [For further information, please refer to Paragraph 3. above on Expungements.]
- Motions to Vacate Criminal Convictions are among the most important