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Is It Too Late to File Your Federal Habeas Petition?

When a criminal defendant wants to challenge a state court conviction, the highest state court is rarely the last stop. Prisoners who have exhausted their options in state court can often get a second chance at challenging their trial court's errors through a petition for habeas corpus under 28 U.S.C. § 2254. Federal habeas petitions can only challenge a state court's conviction for constitutional violations. However, even violations of state rules of criminal procedure can take on a constitutional dimension through the Sixth Amendment's guarantee to effective assistance of counsel, if the defendant's attorney failed to raise those issues or argue them properly. 

One of the biggest obstacles for habeas petitions under § 2254 is the 365 day time limit that federal law imposes. Many prisoners, or their attorneys, find themselves frantically poring over court records and counting days when they realize that a prisoner might be entitled federal habeas relief. The good news is that the statute's 365 day time limit often actually lasts much longer than 365 days after conviction. While every habeas case may present unique circumstances, the process of calculating the time limit for most federal habeas claims can be broken down by the following step-by-step process:

Step 1-Gather All of the Dockets for Each Court that Has Heard the Case

The time limit for habeas relief can't be calculated using only the date of conviction. Federal law takes into account the time that a prisoner spends both appealing his criminal conviction as well as challenging that conviction through a collateral challenges to the conviction. To properly take into account all of the factors that may affect the habeas deadline, familiarity with the history of the case is essential both at the trial court and every level of appeal.

Step 2-Determine the Last Date that a State Court Affirmed the Conviction

28 U.S.C. § 2244(d)(1) specifies four "starting dates" for determining when the clock for the one-year deadline starts. The first, and most common of which, is the date on which the judgment became final "by the conclusion of the direct review or the expiration of the time for seeking such review." The first step to determining the date that the conviction became final is to find out how far the case was litigated through the appellate process. Generally speaking, gaps in time between appeals are not considered when calculating the starting date for a habeas petition. If the case was only tried at the trial level, use the date that the judgment was entered. If a District Court of Appeal heard the case, use the date that the District Court entered its order. If an appeal to the Florida Supreme Court or the United States Supreme Court considered the case, use the date of the Supreme Court's order affirming the conviction or declining jurisdiction.

Step 3- Add Time Limits for Seeking an Appeal or Certiorari

Even if the prisoner did not seek an appeal at every level available, the starting date for the time limit to bring a habeas petition starts on the date that the Defendant could have appealed or petitioned for further review. Generally, if a defendant stopped at the trial court, he has 30 days to file a notice of appeal to a District Court of Appeal, under Florida Rule of Appellate Procedure 9.120(a). If the defendant stopped at a district court of appeal and could seek review in the Florida Supreme Court, he has 30 days to petition the Florida Supreme Court for discretionary review of a district court's decision, under Florida Rule of Appellate Procedure 9.120(b). If the defendant's case ended at the last state court available to him, he has 90 days to file a petition of certiorari to the United States Supreme Court under Rule 13 of the Rules of the Supreme Court of the United States. Be sure to add the appropriate number of days to the last applicable court order in the case to determine when the prisoner's 365 days begin to run.

Step 4- Determine If There Are Any Other Grounds to Bring a Habeas Petition

The final step to determine the starting date for the habeas time limit is to make sure that none of the other dates listed in 28 U.S.C. § 2244 would start the clock at a later time than the date on which the conviction was issued. §2244(d)(1) states that the habeas time limit can also start on the date that: (1) state action in violation of the constitution caused an impediment that prevented the prisoner from filing a habeas petition, (2) the United States Supreme Court recognized a new constitutional right that is retroactively applicable to the prisoner, or (3) the date of the factual grounds for the claim were discovered or could have been discovered through due diligence. If any of these dates occurred after the prisoner's conviction became final, use that as the starting date instead.

Step 5 -Subtract the Days Spent Pursuing Collateral Relief

After calculating the starting date for the habeas time limit, the next step is to count the number of days that transpired after the starting date where state courts were reviewed a properly filed application for state post-conviction relief or collateral review. 28 U.S.C. §2244(d)(2) states that the statute of limitations is tolled- in other words, the clock temporarily stops- while a such an application is pending.

In Florida, the tolling provision generally includes the time that a prisoner spent litigating a motion Rule 3.850 or 3.800. However, it is very important to keep in mind that unlike calculating the starting date, tolling the statute of limitations takes into account the time between the date the conviction became final and the date the that a collateral challenge is filed. For example, if a prisoner filed a 3.850 motion 364 days after his conviction became final, he only has one day to file a federal habeas petition after the final denial of the motion.

Step 6- Determine Whether the Total Time Exceeds 365 Days

After calculating the total number of days that have elapsed since the start date, and subtracting the number of days the statute of limitations was tolled due to applications for collateral relief, the total number of days remaining will determine whether the application meets §2244's timing requirement. Also, keep in mind that, pursuant to what is known as the "mailbox rule", a prisoner's habeas petition is considered "filed" on the date it is mailed, rather than on the date the court receives it.

Step 7- Determine if the Time Limit is Subject to Equitable Tolling

If the time to file the habeas petition has run for more than 365 days, a federal court may still decide to hear the petition through the doctrine of equitable tolling. In a case called Holland v. Florida, the United States Supreme Court found that the time limits in §2244 can be tolled even further using the court's equitable powers. To qualify for equitable tolling, the petitioner must show: (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way that prevented timely filing. Often, equitable tolling requires a defendant who wanted to pursue a timely habeas petition, but was stopped by forces outside of his control. Often, the culprit is an attorney who refuses to file a habeas petition on behalf of his client. Be aware, however, that the Eleventh Circuit held in a case called Cadet v. Florida Department of Corrections, that ordinary negligence by an attorney is not enough to equitably toll the habeas deadline. Rather, the attorney must abandon his representation of the client for his conduct to be considered an "extraordinary circumstance."

Habeas deadlines are not always easy to determine, and can themselves be the subject of litigation if a case presents a novel issue. It's always important to be familiar with the case law the controls the procedural posture in the prisoner's individual case before determining whether the deadline has passed. However, if you believe that the deadline to bring a petition may be over, make sure that you consider all of the steps listed above. Missing one could be the difference between freedom and incarceration for a prisoner whose constitutional rights have been violated.


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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
215 N. Washington Street
Jacksonville, FL 32202

Phone: 904-701-0589
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Regular office hours are 7:30 a.m. to 6:30 p.m.

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