How Long Do You Have to File a 2255 or Federal Habeas Petition?

You generally have one year to challenge your conviction or sentence in federal court after your case is over. Missing that deadline, even by a day, can end your case. Below we explain when the one-year clock starts, when it can pause, and the exceptions.

This article was written by Dale Chappell and is adapted from WinningCites: Section 2255, A Handbook for Prisoners and Lawyers, by Dale Chappell and Brandon Sample. It is the first in a series on federal habeas corpus.

Where the one-year limit comes from

State prisoners file a habeas corpus petition under 28 U.S.C. § 2254. Federal prisoners file a motion under 28 U.S.C. § 2255, which asks the judge who sentenced you to throw out the conviction or sentence because something went wrong. Both have a one-year time limit.

The limit comes from the Antiterrorism and Effective Death Penalty Act ("AEDPA"), signed into law on April 24, 1996. Despite the name, Congress meant the harsh one-year limit to apply to all prisoners, not just those in terrorism or death penalty cases. Courts have moved away from the political goals in the law's name, speeding up the death penalty and stopping terrorism. They now say its main purpose is "finality," meaning bringing cases to an end.

The time limit is not an absolute bar. It is an "affirmative defense," which means it is up to the government (the federal or state prosecutor) to raise it, and the government can ignore it or purposely waive it. You do not have to argue up front that your filing is on time. In practice, if you file late, the government will almost always raise it. Even if it does not, the court can raise timeliness on its own, as long as it gives you a chance to argue why your filing is not late, so be ready. The only time the court cannot raise it is when the government deliberately waives it. Wood v. Milyard, 132 S. Ct. 1826 (2012); Day v. McDonough, 547 U.S. 198 (2006).

How to count the one year

The one-year limit applies to first motions and petitions filed in the district court. It also applies to second or successive ("SOS") applications filed in the court of appeals.

Four different events can start the one-year clock, and the latest one controls. Each gives you a full year from the date of that event. 28 U.S.C. § 2255(f). That is different from "tolling," which pauses a clock that is already running (see below).

Being late by even one day can be fatal. As one court put it, "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." United States v. Marcello, 212 F.3d 1005 (7th Cir. 2000). Filing pro se (without a lawyer) does not excuse you from the deadline.

In most courts, the deadline falls on the one-year anniversary of the triggering event. For example, if your judgment became final on September 25, 2020, your deadline would be September 25, 2021. That date was a Saturday. Under Federal Rule of Civil Procedure 6(a), when a deadline lands on a weekend or legal holiday, it moves to the next day the court is open. So the deadline would be Monday, September 27, 2021. Do not count on the extra days. File early.

If you file from prison without a lawyer, your papers are generally treated as "filed" when you hand them to prison staff for mailing. This is the "prison mailbox rule." The Supreme Court first recognized it in Houston v. Lack, 487 U.S. 266 (1988). To get its benefit, follow your prison's legal mail procedures and keep proof of the date.

Most courts say a judge cannot extend the deadline before anything is filed. The reasoning is that, until you file something, there is no case for the court to act on. So you need to file something that states your claims; a supporting memorandum can often follow later. See Swichkow v. United States, 565 F. App'x 840 (11th Cir. 2014); but see United States v. Thomas, 713 F.3d 165 (3d Cir. 2013).

Trigger 1: The date your judgment became final

The first and most common trigger is the date your judgment became final. [Federal prisoners: § 2255(f)(1); state prisoners: § 2244(d)(1)(A).] Nearly all ineffective assistance of counsel claims, the most common type of claim, fall under this trigger.

When is a judgment "final"? For federal prisoners who appealed but did not ask the Supreme Court for review, it is final when the 90-day time to file a petition for certiorari runs out. Clay v. United States, 537 U.S. 522 (2003). For state prisoners who did not seek review in the state's highest court, it is final when the time to do so ran out. Gonzalez v. Thaler, 565 U.S. 134 (2012). If you did not appeal at all, the judgment is generally final when the time to appeal ran out. That is true even if you waived your right to appeal in a plea agreement, because you could still have filed an appeal, even if it would have been dismissed under the waiver.

Trigger 2: The date a government-created obstacle is removed

A less common trigger is the date a government-created "impediment" to filing is removed. [Federal prisoners: § 2255(f)(2); state prisoners: § 2244(d)(1)(B).] There are two requirements:

1. The impediment must have actually prevented you from filing, not just made it harder.
2. It must have been unconstitutional or otherwise unlawful.

For example, say the government hid favorable evidence from you, in violation of Brady v. Maryland, 373 U.S. 83 (1963), which held that doing so violates the Due Process Clause. The original article said some courts have held that the clock restarts under this trigger on the date you discover the evidence was withheld. See United States v. Cottage, 307 F.3d 494 (6th Cir. 2002). Brady claims may also fit under Trigger 4, so it can make sense to argue both.

Trigger 3: A new right recognized by the Supreme Court

The third trigger is the date the Supreme Court first recognizes a new right that applies retroactively to cases on collateral review. [Federal prisoners: § 2255(f)(3); state prisoners: § 2244(d)(1)(C).]

The clock runs from the date the Supreme Court first recognized the right, not from the date a court later declares it retroactive. Dodd v. United States, 545 U.S. 353 (2005).

For federal prisoners, § 2255(f)(3) does not require that the new right be constitutional. A Supreme Court decision narrowing what a federal criminal statute covers can qualify. Such decisions generally apply retroactively, because the Court's reading of a statute is what the statute has always meant. Bousley v. United States, 523 U.S. 614 (1998); see also United States v. Peter, 310 F.3d 709 (11th Cir. 2002). For state prisoners, § 2244(d)(1)(C) requires a new "constitutional right."

For a first § 2255 motion, courts generally hold that the retroactivity decision does not have to come from the Supreme Court itself; any court can decide it. That is different from a second or successive motion, which requires a new constitutional rule "made retroactive to cases on collateral review by the Supreme Court." [28 U.S.C. § 2255(h)(2).] The Supreme Court rarely does that.

Trigger 4: Newly discovered facts

The fourth trigger is the date "the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." [Federal prisoners: § 2255(f)(4); state prisoners: § 2244(d)(1)(D).]

The state-prisoner version uses slightly different words: the "factual predicate" of the claim. Courts often treat the two the same, but Chappell argued the different wording matters. A "predicate" is the basis for a claim, which suggests the claim did not exist before the discovery. Federal prisoners need only show discovery of "facts supporting the claim," so the claim may already have existed, but the clock does not start until the supporting facts are discovered. It may seem like a small difference, but when Congress uses different language in similar statutes, the Supreme Court has said the difference can matter. Duncan v. Walker, 533 U.S. 167 (2001).

"Due diligence" does not mean "maximum feasible diligence." It means reasonable diligence. See Holland v. Florida, 560 U.S. 631 (2010). You do not have to try every possible avenue to meet this standard.

The Supreme Court's leading case on this trigger is Johnson v. United States, 544 U.S. 295 (2005). The Court held that the vacatur of a prior conviction used to enhance a federal sentence is a new "fact" that can restart the clock, if the prisoner acted diligently.

Equitable tolling and the actual innocence exception

Even if none of the four triggers helps, a court may allow "equitable tolling," which pauses the clock. You must show (1) you pursued your rights diligently, and (2) some extraordinary circumstance stood in your way and prevented timely filing. Holland v. Florida, 560 U.S. 631 (2010).

For example, in Socha v. Boughton, 763 F.3d 674 (7th Cir. 2014), a public defender would not turn over a prisoner's case file. The court rejected the government's argument that the prisoner should have pieced together a petition without it to meet the deadline. The court said that approach would lead courts to reject many petitions as inadequate. As the court put it, "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."

State prisoners also get "statutory tolling" under § 2244(d)(2). The clock pauses while a properly filed state post-conviction case is pending, including appeals. You do not have to meet the Holland test for this kind of tolling.

There is also an "actual innocence" exception. In McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), the Supreme Court held that a convincing showing of actual innocence can overcome the one-year limit. The Court reasoned that habeas corpus exists to prevent a miscarriage of justice, such as imprisoning an innocent person.

Check your deadline now

Filing on time is critical. This is only an overview, and each trigger has many details. To give you an idea of the depth, the book this article is adapted from has over 900 footnotes citing cases and other authority on these issues. The next article in this series covers retroactivity of Supreme Court decisions for habeas corpus relief. Research the provision that applies to you, or have a lawyer check your deadline as soon as possible. To do that, a lawyer will need the judgment (the court's written order stating the sentence), the case and docket numbers, and the date of any appeal decision. Write down the date the clock likely started, and work backward from the deadline, not forward from today.

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