V I R G I N I A:
GENERAL DISTRICT COURT FOR (COUNTY)
COMMONWEALTH :
: CASE GC0000000000
:
DOE, JANE :
MOTION TO RE-OPEN CASE AFTER CONVICTION AND VACATE CONVICTION OR IN
THE ALTERNATIVE TO GRNAT EQUITABLE RELIEF
COMES NOW, JANE DOE, by counsel, and respectfully requests this Honorable Court to re-
open the above styled case. As grounds for said motion, the following is submitted:
In the instant case, defendant plead guilty of petit larceny on (DATE) in the General
District Court for (COUNTY) . A review of the disposition indicates that she had an attorney,
however, the attorney failed to apprise her of collateral immigration consequences as a result of
the plea. See attached Affidavit. The defendant is Spanish and did not understand English, but
relied on the representation of her attorney that she would not be deported as a result of this
conviction. Moreover, there is nothing in the record to indicate that the Court advised the
defendant that if she was not a citizen, then the conviction could have unfavorable immigration
consequences. See attached disposition of case. Had she been properly informed, she would not
have pled guilty.
Currently, she is facing deportation charges, and the time for a motion to re-open, a
motion to vacate and direct appeal have expired. She is not in custody, so habeas relief is not
available.
She was denied the opportunity of making an informed decision after meaningful consultation
concerning immigration consequences. The US Supreme Court in Padilla v. Kentucky, 130 S. Ct.
1473(2010) held that the 6 th Amendment to the US Constitution requires counsel to “inform
(their)client whether his (or her) plea carries a risk of deportation., Id. Lack of advice could
affect he person’s immigration status. The case was sent back to the trial court to apply the
Strickland two prong test (Strickland v. Washington, 466 U.S., 668 (1983).
Post-Conviction Relief
Independently of the above, The Virginia Supreme Court in Commonwealth v. Morris,
Jan 11, VaSC No. 092163 & 092346, held that writs of error coram vobis and audita querela are
not the proper vehicles to modify post conviction relief from criminal sentences when the
allegation is one for ineffective assistance of counsel.
However, Courts may use the doctrine of equitable tolling to permit a late filing. Holland
v. Florida, 130 S. Ct. 2549 (2010), wherein the US Supreme Court held that gross negligence of
counsel may be grounds to permit the equitable tolling provision in permitting his late filing of
his habeas petition. Courts have inherent authority to consider motions to address constitutional
rights.
Ineffective assistance of counsel should provide cause to excuse procedural default of
other substantive constitutional claims.
Virginia rules and statutes provide several paths to address these concerns.
Section 16.1-133.1 Va. Code: Reopening case after conviction-permits reopening for
good cause within sixty days.
Rule 3A:20(a) (2) VSCR: Time-upon motion made after the expiration of the specified
period,based on excusable neglect.
Rule 7A (5) VSCR: Discretion of Court-time for pleadings may be extended by the court
in its discretion, …although the time fixed already has expired.
2
Rule 1:9 VSR: Discretion of Court: permits extension of time to file pleadings although
the time fixed already has expired, in the court’s discretion.
Section 8.01-428 (D) VA Code: Other judgments or proceedings-permits the court to
entertain at any time an independent action to relieve a party from any judgment or proceeding.
Section 16.1-93 Va Code: Principles applicable to trial of cases-principles of law and
equity control and permit the court to enter orders to promote substantial justice to all parties.
It is clear that Virginia permits equitable relief. In the instant case, the defendant was not
informed of the immigration consequences that would flow as a result of the conviction. Had
she known of collateral immigration consequences, she would have vigorously contested the and
proceed with all forms of post-conviction remedies.
Wherefore, it is respectfully requested that this court grant this post conviction motion
and the conviction be vacated or in the alternative to grant equitable relief based on a defect in
the underlying criminal proceedings.
Jane Doe
By Counsel
(Law Firm)
____________________________________
Attorney’s Name
Attorney’s Address
3
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing motion was mailed, first class; postage pre-paid
this ___ day of (MONTH) ____, (YEAR), to Commonwealth Attorney at:(ADDRESS)
_________________________________
(Attorney’s Name)
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