In Re Azurin

The People appeal from the order of the superior court granting Greg Azurin’s petition for a writ of habeas corpus permitting Azurin to withdraw his plea of guilty to discharging a firearm at an occupied motor vehicle. (Pen. Code, § 246.) The People contend the superior court lacked habeas corpus jurisdiction because Azurin was assertedly not in state custody, either actual or constructive, at the time he filed his petition. We reverse the order.

I

Introduction

Philippine citizen Azurin was a lawful permanent resident of the United States. In March 1990, without being advised by counsel that deportation proceedings would likely be initiated against him as a result of a guilty plea in this case, Azurin pleaded guilty (the 1990 conviction). Azurin served a term at the California Youth Authority, successfully completed parole and was released from actual state custody.

In November 1998, several years after Azurin completed parole, the United States Immigration and Naturalization Service (INS) instituted deportation proceedings against Azurin based upon his 1990 conviction in this case for an aggravated felony.

In February 1999 Azurin petitioned the superior court for…