Christmas arrived a few days early for Sergio Cortes.
On Dec. 19, a Dane County judge officially dismissed the Madison man's 1997 conviction for having sexual contact with a minor over 16. The consequences of vacating the conviction are life-changing: Cortes, a native of Mexico, is no longer subject to automatic deportation by federal immigration authorities.
Cortes came to the United States alone in 1990 when he was just 14. This September he was arrested by U.S. Immigration & Customs Enforcement, or ICE, and notified he was being deported because he was not a U.S. citizen and he had been convicted of an aggravated felony.
Madison criminal defense attorney Bruce Rosen filed a motion in Dane County court in October, asking that Cortes' 1997 no-contest plea be withdrawn and his conviction vacated. At the time Cortes was being held in the Kenosha County Jail under ICE detention.
Assistant District Attorney Mike Finley did not object to the motion, and Judge Ellen Berz agreed to withdraw Cortes' plea and vacate his conviction. Prosecutors declined to reopen the case once the victim was located and interviewed. "She did not want to proceed with the case, so we didn't want to proceed," says Finley.
A database search of Wisconsin Circuit Court Access records conducted by Dane County Clerk of Circuit Court Carlo Esqueda, at the request of Isthmus, turned up 35 cases where an old conviction was later tossed out in Dane County court. Some involved defendants who, like Cortes, faced deportation because of old convictions but were successful in arguing they had not been notified of the immigration consequences when they pled to their respective offenses.
Moises Calzada, for instance, was detained by ICE in 2010 and told he was being deported based on his criminal record, which included a 2008 conviction in Dane County court for one count of marijuana possession. His attorneys argued that he had not been warned of the immigration consequences of his plea as required by Wisconsin Statutes 971.08(1) and was therefore eligible to withdraw his guilty plea. Kenneth Farmer, a former assistant district attorney, did not object, and Judge David Flanagan agreed to withdraw Calzada's plea. Calzada was soon after convicted of misdemeanor possession, not a deportable crime.
In another case, Judge Julie Genovese in March 2012 vacated Cesar Jump's 1996 conviction for sexual assault of a child. A native of El Salvador, Jump was in ICE custody at the Kenosha County Jail at the time. Assistant District Attorney Chris Freeman subsequently requested the case be dismissed.
Alexander Timofeev is another Madison resident facing deportation due to past crimes. But unlike Cortes, Jump and Calzada, Timofeev has not had the support of the DA's office in his attempts to negotiate a legal remedy that would save him from permanent banishment from the United States.
Ruling by Jan. 15
As Isthmus first reported last July, Timofeev is facing deportation to Russia for three pot possession convictions he incurred as a teenager in the 1990s.
Timofeev was 14 when he moved with his family in 1992 to Madison from the former Soviet Union. While the rest of his immediate family are now United States citizens, Timofeev says his application for permanent residency hit bureaucratic snags. In September 2012, more than a decade after he completed his sentences, he was arrested by ICE and detained for four months at the Dodge County Detention Center.
Timofeev's attorney took his case to court, arguing that his client should be allowed to withdraw his guilty pleas from the 1990s because he was not warned at the time they could result in his deportation. Assistant District Attorney Matthew Moeser, however, objected.
Dane County District Attorney Ismael Ozanne, who is now running for Wisconsin attorney general, told Isthmus in July that just because someone requests that a conviction be dismissed "doesn't mean we should necessarily turn around and vacate."
Berz, who is also the judge in Timofeev's case, nevertheless agreed last January to vacate all three of Timofeev's convictions, and he was subsequently removed from immigration detention.
That could have been the end of Timofeev's struggle, but the DA's office asked the Department of Justice to appeal Berz's decision. The appeals court has since returned the case to circuit court to be argued on different grounds. Attorneys on both sides have filed additional motions, and Berz must rule by Jan. 15.
Moeser says he now supports withdrawal of Timofeev's plea for his 1996 conviction because documents have emerged that show he was not apprised of the immigration consequences of his plea. But Moeser is unwilling to support vacating the other two convictions -- necessary for Timofeev to avoid deportation -- on the grounds put forth by Timofeev's attorney, Davorin Odrcic. Agreeing to withdraw pleas because Timofeev received "ineffective counsel," says Moeser, would set a bad precedent.
"If a defendant years after sentencing [is able] to come back and challenge convictions, it would create chaos and a complete lack of finality in a lot of the cases we've handled," says Moeser.
Role of prosecutors
When it comes to responding to requests for post-conviction relief for immigrants facing deportation, district attorney offices tend to fall into three camps, says Dan Kesselbrenner, executive director of the National Immigration Project of the National Lawyers Guild.
Some are hostile to non-citizens and don't consider plea withdrawal or post-conviction relief at all, he says.
Others are "neutral or agnostic" on the issue: "They treat each case on its merits. They don't have any policies that recognize this is a group that should be treated harshly or tolerantly."
There are also a few offices that recognize the specific issues that non-citizen criminal defendants face, says Kesselbrenner.
While prosecutors are not the final arbiters of post-conviction actions that go to court, he adds, they can play a significant role in the outcome.
"Prosecutors can make it a hell of a lot easier if they agree [with vacating the conviction]," he says.
No one knows the flip side better than Timofeev, who has now been in legal limbo for more than 14 months since ICE tracked him down at his apartment in September 2012.
He has not been able to return to his work as a chef at the Nakoma Country Club and, without an income, has fallen behind in child-support payments for his two American-born daughters.
If deported, Timofeev would be returned to a country where he has no friends, family or job and no longer knows the language. And he would never be able to return to the U.S. to visit his American fiancée, daughters and immediate family.
With a court ruling less than a week away, Timofeev is hopeful but weary: "I'm just really, really tired."