What is the deadline to file a federal habeas corpus petition?

This page is general information about how the deadline works. It is not legal advice about your dates or your case.

The federal habeas deadline in short

• The limit is one year under 28 U.S.C. § 2244(d)(1), counted from the latest of four start dates, and in many cases that is the date the conviction became final.
• A federal habeas petition asks a federal court to rule that a person is held “in custody in violation of the Constitution or laws or treaties of the United States.” For a person held under a state court judgment, it is filed under 28 U.S.C. § 2254.
• Time while a “properly filed” state post-conviction application is pending does not count, under § 2244(d)(2). A pending federal petition does not pause the year.
• A court may excuse a late petition through “equitable tolling,” but only when the person shows diligence and an extraordinary circumstance.
• People serving a federal sentence use a different filing, a § 2255 motion, with its own one-year limit in § 2255(f).

A “limitation period” is a filing deadline, and this one comes from the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This page covers the deadline only. For what habeas is and what the state step is called in each state, read what post-conviction relief is. For the filing itself, read how to file a habeas corpus petition.

How the one-year habeas clock runs, step by step

1. The year starts. It runs from the latest of the four start dates in § 2244(d)(1), in many cases the date the judgment became final.
2. A state filing pauses it. Time is not counted while a properly filed state post-conviction application is pending (§ 2244(d)(2)).
3. The clock runs again. When the state courts finish, the days left start running again. Days already used stay used.
4. A late petition needs a way past the bar. That means a later start date, equitable tolling or a strong showing of actual innocence, each explained below.

When does the one-year habeas clock start?

The statute lists four possible start dates. The year “shall run from the latest of” them. “Latest” means the one that falls last on the calendar counts.

1. Finality: “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”.
2. A State-created barrier ends: the date an unlawful “impediment to filing an application created by State action” is removed.
3. A new Supreme Court right: the date a right “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review” was first recognized.
4. New facts: the date the facts behind the claim “could have been discovered through the exercise of due diligence.”

• Direct review is the regular appeal of the conviction, and any request to a higher court to hear that appeal.
• Collateral review is a separate case that attacks the conviction from the side, such as state post-conviction or federal habeas. Only state collateral review pauses the federal clock, as explained below.

In a footnote in Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Supreme Court described start dates 2, 3 and 4 as ones “that require claim-by-claim consideration.” Courts decide how they apply, and this page does not state those tests.

What does “final” mean for the habeas deadline?

In Gonzalez v. Thaler, 565 U.S. 134, 150–151 (2012), the Court explained the statute’s two ways a judgment becomes final:

• For people who take the direct appeal all the way to the U.S. Supreme Court, it is final “when this Court affirms a conviction on the merits or denies a petition for certiorari.”
• For everyone else, it is final “when the time for pursuing direct review in this Court, or in state court, expires.”

If the state’s highest court decided the direct appeal, or refused to hear it, the next step is a request asking the U.S. Supreme Court to hear the case, called a petition for certiorari. Supreme Court Rule 13.1 says that petition is timely “when it is filed with the Clerk of this Court within 90 days after entry of the judgment.” Rule 13.3 says the time “runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate”. A mandate is the appeals court’s formal notice that its decision is done. If the appeal stopped in a lower state court, the 90 days do not apply, and the judgment is final when the time to ask the higher state court expires.

Does state post-conviction stop the habeas clock?

Yes, while it is pending, if it was properly filed. Section 2244(d)(2) says: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”

In plain words:

• Only a state filing counts. In Duncan v. Walker, 533 U.S. 167, 181 (2001), the Supreme Court held “that an application for federal habeas corpus review is not an ‘application for State post-conviction or other collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2).” Time while a federal habeas petition is pending does not pause the year.
• “Shall not be counted” means the clock is paused. Days already used stay used.
• “Properly filed” has a meaning the Supreme Court set. In Artuz v. Bennett, 531 U.S. 4, 8 (2000), it said an application is properly filed “when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Those rules “usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.” A filing can be properly filed even if the claims in it are later turned down. A late one is not. In Pace, 544 U.S. at 414, the Court held that when a state petition “is untimely under state law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).”
• “Pending” means the state case has not yet “achieved final resolution through the State’s postconviction procedures,” in words the Court used in Lawrence v. Florida, 549 U.S. 327, 332 (2007) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)).

Federal law requires a state prisoner to use the state courts first: § 2254(b)(1) says a petition “shall not be granted unless it appears that… the applicant has exhausted the remedies available in the courts of the State,” unless one of the statute’s exceptions applies. So when the state case is filed affects how much of the federal year is left.

Can a late habeas petition still be heard?

Sometimes. Three routes exist. The first is a later start date. The national form, AO 241, asks about this directly: “If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition.”

The second is equitable tolling, which means a court pauses the deadline for fairness reasons the statute does not list. In Holland v. Florida, 560 U.S. 631, 645 (2010), the Court held “that § 2244(d) is subject to equitable tolling in appropriate cases.” A petitioner must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. The Court called the lower court’s rule “too rigid,” and said that “at least sometimes, professional misconduct… could nonetheless amount to egregious behavior and create an extraordinary circumstance that warrants equitable tolling.”

The diligence required is “reasonable diligence,” not “maximum feasible diligence.” But “a garden variety claim of excusable neglect,” such as a simple “miscalculation” by a lawyer, “does not warrant equitable tolling.” (A “garden variety claim of excusable neglect” means an ordinary mistake, such as a lawyer counting the date wrong.)

The third is a strong showing of actual innocence. In McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), the Court held “that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar… or, as in this case, expiration of the statute of limitations.” The Court cautioned “that tenable actual-innocence gateway pleas are rare”.

What is the deadline for a federal prisoner’s § 2255 motion?

A person serving a federal sentence files a motion under 28 U.S.C. § 2255, and § 2255(f) says: “A 1-year period of limitation shall apply to a motion under this section.” Its start dates are covered in the § 2255 deadline section of the post-conviction guide, and the filing itself is in how to file a § 2255 motion.

Common mistakes with the habeas deadline

• Counting from the wrong day. The year runs from the latest start date, not from sentencing.
• Counting on a federal petition to pause the clock. Only a properly filed state application pauses it.
• Filing in state court late. A state filing the state court rejects as untimely is not “properly filed,” so it does not pause the federal clock.
• Filing the state case after the year has run. The pause only stops a clock that is still running. A state filing made after the year is over has no time left to pause.
• Counting on a U.S. Supreme Court petition after state post-conviction. The pause ends when the state courts finish. In Lawrence v. Florida, the Court held that “§ 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari.” (“Toll” means pause.)

More questions about the federal habeas deadline

Cases, statutes and rules cited on this page

28 U.S.C. §§ 2244(d), 2254(a), 2254(b)(1), 2255(f) · Sup. Ct. R. 13.1, 13.3

Artuz v. Bennett, 531 U.S. 4 (2000) · Duncan v. Walker, 533 U.S. 167 (2001) · Pace v. DiGuglielmo, 544 U.S. 408 (2005) · Lawrence v. Florida, 549 U.S. 327 (2007) · Holland v. Florida, 560 U.S. 631 (2010) · Gonzalez v. Thaler, 565 U.S. 134 (2012) · McQuiggin v. Perkins, 569 U.S. 383 (2013)

Guides related to the habeas deadline

How do you file a federal habeas corpus petition after a state conviction? · What is post-conviction relief? · How do I petition the U.S. Supreme Court? · Can’t afford a lawyer? Free legal help

This guide is general information, not legal advice. Legal Ops Depot is software and a law library, not a law firm. For advice about your own dates and your own case, contact a legal aid office or a lawyer.