Federal Habeas Corpus: Time Limits for Filing
There is a one-year time limit to file a habeas corpus petition in federal court. Thanks to the Antiterrorism and Effective Death Penalty Act (AEDPA) signed into law on April 24, 1996, this time limit applies to both state and federal prisoners, regardless of what kind of case they are challenging. Don`t let the name fool you: The AEDPA doesn`t just apply to terrorists and those on death row. In fact, it really didn`t do anything to affect either one of those, but that`s another story (which I`ve written about more than a few times).
Calculating the One-Year Limit
The Supreme Court has held that the one-year limit applies to first time petitions, as well as authorized second or successive petitions. Dodd v. United States, 545 U.S. 353 (2005). [Note that while state prisoners file a “petition” under 28 U.S.C. sec 2254, and federal prisoners file a “motion” under 28 U.S.C. sec 2255, I will use the term “petition” here.] There are four events that start the AEDPA clock, and you get a full year to file from the date of the event. However, be aware that being late by even one day can be fatal to your habeas petition. In United States v. Marcello, 212 F.3d 1005 (7th Cir. 2000), the court held that “foreclosing litigants from bringing their claim because they missed the filing deadline by one day may seem harsh, but courts have to draw the line somewhere.” And this applies whether the petitioner has a lawyer or is acting on his own (pro se).
Typically, the one-year clock expires on the anniversary date of the event that starts the clock. For example, if your judgment became final on September 25, 2020, your one-year window would have expired on September 26, 2021. Under Federal Rule of Civil Procedure 6(a), you don`t count the first day of the event, and since September 26, 2021, was a Sunday, your deadline would have bumped up to the next business day under Rule 6.
If you`re filing pro se from prison, your petition is considered “filed” and the clock stops when you hand your papers to prison staff for mailing. This is called the “prison mailbox rule,” which was recognized by the U.S. Supreme Court in Hill v. Lockhart, 487 U.S. 266 (1988).
One Year from Judgment Becoming Final
The first trigger that starts the AEDPA clock is the date on which your judgment becomes final. [Federal prisoners: sec 2255(f)(1), state prisoners: sec 2244(d)(1)(A)] You get one year from that date. This is the most common deadline prisoners face in habeas cases, because nearly all ineffective assistance of counsel (IAC) claims — the most common claim prisoners make — will fall under this trigger.
A judgment is “final,” the Supreme Court held in Gonzalez v. Thaler, 132 S. Ct. 641 (2012), when all options to appeal have expired or have been denied. This is true even if you waived your right to appeal, because you could still file an appeal and the government could opt to ignore that waiver.
One Year from the Date an Impediment is Removed
This somewhat confusing provision allows the clock to restart upon removal of an unconstitutional “impediment” put in place by the government. [Federal prisoners: sec 2255(f)(2), state prisoners: sec 2244(d)(1)(B)] There are two parts to this trigger: (1) the impediment must be a true obstacle to filing and not merely make it harder to file, and (2) the obstacle must be unconstitutional or unlawful under federal standards.
An example of something that would trigger this provision would be when you find out years later that the prosecutor withheld favorable evidence from you, a Due Process Clause violation, as the Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963). Some courts have held that the date you discover this violation is when the clock starts under the second provision. See United States v. Cottage, 307 F.3d 494 (6th Cir. 2002).
One Year from a Retroactive Supreme Court Decision
The third provision allows the AEDPA clock to restart from the date of a retroactive Supreme Court decision. [Federal prisoners: sec 2255(f)(3), state prisoners: sec 2244(d)(1)(C)] Under this provision, any court can declare a Supreme Court decision retroactive, it doesn`t have to be the Supreme Court itself.
This differs from the provision for second or successive motions, requiring the Supreme Court itself to make its decision retroactive (something that rarely ever happens), and that the decision has to a constitutional one. This third provision that restarts the AEDPA clock doesn`t require any of that, only that the decision is retroactive. See United States v. Peter, 310 F.3d 709 (11th Cir. 2002).
One Year from the Date of Newly Discovered Evidence
The fourth provision restarting the AEDPA clock is “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” [Federal prisoners: sec 2255(f)(4), state prisoners: sec 2244(d)(1)(D)] This provision might seem the same for both state and federal prisoners, but there is a slight difference in the wording of the two statutes — and that matters.
State prisoners must show discovery of the “factual predicate” for the claim. Federal prisoners only have to show discovery of “facts supporting the claim.” A predicate is the basis for a claim, meaning the claim didn`t exist before this discovery for state prisoners. But the claim could have existed for federal prisoners, yet the clock wouldn`t start until the facts are discovered to support the claim. It may seem trivial but when Congress uses different words in similar statutes, the Supreme Court says it`s important. Duncan v. Walker, 533 U.S. 167 (2001).
Both state and federal prisoners must show “diligence” in developing their claims under this provision. The Supreme Court`s instructive case on this fourth provision is Johnson v. United States, 544 U.S. 295 (2005), where the Court recognized a vacated prior conviction as a new “fact” for the fourth provision. (But the Court also held that the petitioner was not diligent in getting his prior conviction vacated and therefore didn`t meet the criteria to restart the clock.)
Equitable Tolling and Exceptions to the AEDPA
If you are too late to file under any of these provisions but have a valid reason for being late, you can ask the court to “equitably toll” the one-year clock to allow your petition to be timely-filed. Two criteria exist for this to happen: (1) you`ve been pursuing your rights diligently, and (2) “some extraordinary circumstance” stood in your way and prevented timely filing. Holland v. Florida, 560 U.S. 631 (2010).
A good example of equitable tolling applied in a habeas case is Socha v. Boughton, 763 F.3d 674 (7th Cir. 2014). There, a public defender refused to turn over a prisoner`s case file so that he could file a habeas petition in federal court. The court rejected the government`s argument that the petitioner could have pieced together a petition, even without the case file, in order to get his petition in on time. “Sometimes it takes longer to review the possibilities, discard the least promising, and write a concise pleading than it would to write a kitchen-sink petition,” the court said.
There are also exceptions to the AEDPA time limit. The Supreme Court addressed one such exception in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), holding that actual innocence is an “exception” to the AEDPA`s time limit. The Court reasoned that habeas corpus is designed to prevent a miscarriage of justice, and actual innocence is one example of such an injustice. The AEDPA`s time limit should not bar someone from relief who is innocent, the Court said.
Note: This post is adapted from my books, Federal Habeas Corpus for State Prisoners: An Insider`s Guide and Habeas Corpus for Federal Prisoners: An Insider`s Guide, and was also published in Criminal Legal News Magazine in December 2020, p. 10.