My Lawyer Missed My Habeas Deadline. Can I Still File?

If your lawyer missed your habeas deadline because they abandoned you, a court may let you file late. In 2017, the Eighth Circuit sent Mark Christeson's case back to the trial court for a hearing on that exact question.

What happened in Christeson's case

Christeson was a Missouri state prisoner. His lawyers did not file his 28 U.S.C. § 2254 petition on time. A § 2254 petition is how a state prisoner asks a federal court to review a conviction. It works much like a 2255 motion does for federal prisoners.

Christeson later asked the court to reopen his case under Federal Rule of Civil Procedure 60(b), a rule that lets a court set aside a final judgment for certain reasons. He argued that his lawyers had abandoned him. If they had, that could count as an "extraordinary circumstance." It could also justify equitable tolling, which means pausing the one-year filing clock for fairness reasons.

Why the Eighth Circuit ordered a hearing

The district court found no abandonment. But it looked mostly at what the lawyers did after the deadline had passed.

The Eighth Circuit pointed to evidence the other way. For example, the lawyers did not meet with Christeson until "six weeks after the petition due date." The court sent the case back for a limited hearing on whether the lawyers had abandoned him. See Christeson v. Roper, 845 F.3d 1239 (8th Cir. 2017) (No. 16-2730).

The case went back to the Eighth Circuit after that hearing. See Christeson v. Roper, 860 F.3d 585 (8th Cir. 2017).

What this means if your lawyer went silent

Ordinary lawyer mistakes usually do not stop the clock, but true abandonment can. If your lawyer cut off contact and missed a deadline, write down the dates and keep every letter and email. That paper trail is often what a court looks at first.

Federal prisoners face a similar clock. A § 2255 motion generally must be filed within one year, usually counted from the date the conviction became final, under 28 U.S.C. § 2255(f). Don't wait to see whether your lawyer resurfaces. For help with a 2255 motion, see 2255motion.com.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.