Legal Question in Appeals and Writs in California
This is a highly technical question. I am presently being assisted by the Innocence project in California to try and reopen my criminal case and present new evidence of factual innocence. The first and major obstacle I face is standing. Habeas Corpus would be a typical and likely procedure in this instance however, I am no longer in any t ype of recognizable custody. I was discharged from parole 4 years ago. Approximately, one year ago the alleged victims and primary prosecution witnesses have written declarations that they lied at trial regarding the alleged crimes I was to have committed. Problem is: There does not appear to be a procedure statutorily or possibly even in equity, to reopen my case because I am no longer in custody. Does anyone know of a procedural angle I can use to present my case? FYI, the charge was 288 child molestation of biological children. Accusations arised during a divorce and I have always held my innocence. I do have to register as a sex offender in California pursuant to PC 290. Recent Court opinion has declared PC290 as insufficient to show constructive custody for habeas Corpus. I may have to approach legislators to amend the law if we cannot find available staturory or equitable procedural law. The question: How can I reopen my case to present newly disvcovered evidence and not be in constructive custody? Thank you
2 Answers from Attorneys
I do not practice any criminal law. But there are analagous situations in civil law. I know a petition for writ or coram nobis may lie, which is really a motion to vacate a criminal judgment. Custody is not a requirement for this, as in habeus proceedings. And its denial in the superior court is an appealable order to get you to an appellate court. Research this and you might find something under PC 1265. Read In Re Wessley W. (1981) 125 Cal.App.3d 240, and have your criminal attorney do some research.
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