The Basic Requirements for a Federal Habeas Corpus Petition

The basic requirements for a Federal habeas corpus petition by a person in State custody under 28 U.S.C. § 2254 are:

1. The person must be in state custody;
2. The prisoner must have exhausted all possible avenues of relief through the state court system; and
3. The Federal habeas corpus petition must be filed within 1 year of the date the conviction becomes “final.”

Requirement 1: “Custody”

The first requirement is “custody” which means a person must be in a state prison or jail, or be released on parole. People on probation generally do not qualify for Federal habeas relief.

Requirement 2: “Exhaustion”

The second requirement is “exhaustion.” A person must first appeal their conviction and/or challenge their conviction in a post-conviction relief proceeding through the State court system prior to filing a petition in Federal court. The issues raised in their direct appeal and/or their motion for post-conviction relief must also be based upon claims of violation of a Federal Constitutional right.

In addition, the prisoner must raise their Federal Constitutional and take it as far as it can go in the State courts. For example, if the prisoner files a motion for post conviction relief in state court, and it is denied, but the prisoner does not appeal to a higher court if the State law allows an appeal, then the claim will be “procedurally defaulted.” This means that the particular Federal Constitutional claim will not be heard by the Federal court in a petition for habeas corpus. If the state court gives a prisoner a way to appeal or challenge their conviction, the name of the game is “use it or lose it.”

Requirement 3: 1 year statute of limitations

The third requirement is the 1 year statute of limitations. The Federal habeas corpus petition must be filed within 1 year of the date the state conviction becomes “final.”

A conviction is “final” when either the time to directly appeal a conviction to a higher court expires if no direct appeal is made, or the date on which the last appellate court issues an opinion or judgment affirming the conviction on a direct appeal and finally concludes the direct appeal.

A motion for post-conviction relief will toll, or suspend the 1 year statute of limitations, as long as it is timely filed, and properly filed.

Think of it as a stopwatch.

Certain events will start the clock ticking, and certain events will freeze the clock.

For example:

Defendant is convicted after trial and timely files a direct appeal to the State’s intermediate appellate court.

In the direct appeal, he raises 4 basic claims of error, 3 of which are based on violations of his Federal Constitutional rights, and one which is based only on State law.

The intermediate appellate court affirms the judgment of conviction on March 1, 2018.

Defendant then appeals to the State supreme court in a timely fashion, but the State supreme court affirms the conviction on June 1, 2018.

The conviction is now “final” and the 1-year statute of limitations begins to start running, counting down 365 days.

Defendant then files a timely and properly-filed motion for post-conviction relief in the State court on July 1, 2018.

The motion raises two claims, one based on violations of his Federal Constitutional rights, and one which is based only on State law. Because the post-conviction relief motion was timely and properly filed, the 1-year statute of limitations is tolled, or suspended, while the motion is pending. 30 days have already gone by, which is deducted from the 365 days.

The motion for post-conviction relief remains pending until August 1, 2018, when it is denied. Defendant then timely appeals the post-conviction relief motion to the state appellate court, which denies the appeal on September 1, 2019. Because of the law in that particular state, only one appeal is allowed for a post-conviction relief motion. This ends his appeals in State court.

Defendant has fully exhausted the 3 Federal Constitutional claims he raised in the State appellate courts, and fully exhausted the 1 Federal Constitutional claim he raised in the post-conviction relief proceedings. Defendant can now take his 4 claims to Federal court and petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The deadline to file his Federal habeas corpus petition is August 1, 2019. If he files on or before that date, the Federal court will entertain his claims. If he files after that date, the entire habeas petition would likely be dismissed.

DISCLAIMER: Some lawyers like to add an additional 90 days to the 1-year statute of limitations, based upon the time allowed to appeal to the United States Supreme Court in a direct appeal. This is sometimes a possibility, but there are many exceptions to this rule and we personally do not rely upon the extra 90 days unless absolutely necessary. It is always better to use less time than is allowed, or else you are taking an enormous risk.

If the Federal court grants a petition for a writ of habeas corpus under 28 U.S.C. § 2254, it will order that the State prisoner either be released, or the conviction be vacated and the prisoner granted a new trial, usually within a specific and short timeframe.

The basic requirement for a Federal habeas corpus petition by a person convicted in Federal court for a Federal crime under 28 U.S.C. § 2255 is that the petition must be filed within 1 year of the date the conviction becomes “final.” The same definition for “final” applies, except in this case, it is the Federal appellate courts that decide the direct appeal

A § 2255 petition can be based upon:

1. A violation of a Federal Constitutional right
2. A violation of a statutory Federal right
3. Lack of jurisdiction
4. An illegal sentence

If the Federal court grants a petition for a writ of habeas corpus under 28 U.S.C. § 2255, it can vacate the conviction, dismiss charges, amend, reduce, or correct the sentence, order a new trial, or grant other relief.