A motion to vacate judgment in the nature of a petition for writ of error corum nobis may not be used to present an ineffective assistance of counsel claim based on trial counsel failure to advise defendant of the immigration consequences of a plea. Defendant pled guilty to misdemeanor criminal threats (Pen. Code, § 422). He was not advised that a sentence of 365 days would result in the offense constituting an aggravated felony under federal immigration law, which would lead to his removal from the U.S. Defendant sought to withdraw his plea more than a year after entry, claiming his attorney was ineffective for having failed to advise him of the immigration consequences. The first motion was denied; three months later an identical motion was filed and granted. The prosecution appealed. Held: Reversed. The granting of the second motion to vacate the plea was an abuse of discretion because the denial of the first motion was not appealed. This prior appealable order therefore became res judicata in the same case. Therefore, the second motion to vacate judgment was equivalent to a petition for writ of error corum nobis. The purpose of a corum nobis petition is to obtain relief from a judgment while some fact exists which, if known, would have prevented its rendition, and which through no fault of the defendant, was not known to the court. “[T]he remedy does not lie to enable the court to correct errors of law,” which includes constitutional claims. The “fact” on which the motion was based was not new; it was known at the time of the first motion. Finally, appellant failed to show due diligence in pursuing his remedies because he failed to appeal the denial of the first motion to vacate the plea.
Even if the motion were deemed a petition for writ of habeas corpus, it was properly denied. A defendant must be in actual or constructive custody to pursue a petition for writ of habeas corpus. Defendant was no longer in custody when his motion was filed. Further, prejudice resulting from the claimed ineffective assistance of counsel was lacking because the record failed to prove that defendant would have achieved a more favorable result were his plea withdrawn.