Post-Conviction Relief for Immigrants



 
 

§ 5.30 3. The Petition Must Be Timely Filed

 
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There are two aspects of a timeliness requirement for filing a federal 2255 motion or habeas corpus petition:

 

(1)     The petition must be filed in compliance with the one-year statute of limitations enacted by AEDPA in 1996; and

 

(2)     The petition must be filed while the defendant is still in actual or constructive custody, i.e., while the defendant is still in prison, on parole or supervised release, or on probation.

 

If either of these two requirements is not met, the petition will be dismissed with prejudice.  It is therefore of the first importance for post-conviction counsel to check the statute of limitations as the first act in considering whether to accept a particular case.

Updates

 

Ninth Circuit

POST CON RELIEF " FEDERAL " HABEAS " DUE DILIGENCE REQUIREMENT
Souliotes v. Evans, 622 F.3d 1173 (9th Cir. Sept. 20, 2010) (28 U.S.C. 2244(d)(1)(D) does not require maximum diligence possible in uncovering the factual bases of the claims, but only "due" or "reasonable" diligence).
POST CON RELIEF - HABEAS CORPUS - FEDERAL - NEW PETITION FILED AFTER DISMISSAL WITHOUT PREJUDICE FOR FAILURE TO EXHAUST DOES NOT RELATE BACK TO DATE OF FILING OF ORIGINAL PETITION
Rasberry v. Garcia, ___ F.3d ___ (9th Cir. May 25, 2006) (habeas petition filed after district court dismissed previous petition without prejudice for failure to exhaust state remedies does not relate back to the date of filing of original habeas petition).
http://caselaw.lp.findlaw.com/data2/circs/9th/0315854p.pdf
POST CON - FEDERAL - HABEAS - TIMELINESS
United States v. Lafromboise, ___ F.3d ___ (9th Cir. October 26, 2005) (court of appeals vacated denial of plaintiff's motion for habeas relief as untimely, where district court's judgment in underlying criminal proceedings is not yet final and the one-year limitations period has not begun to run).
http://caselaw.lp.findlaw.com/data2/circs/9th/0335853p.pdf
POST CON - HABEAS - FEDERAL - SECOND FILING RELATES BACK TO DATE OF ORIGINAL FILING
Anthony v. Cambra, __ F.3d __ (9th Cir. Dec. 15, 2000) (district court accepted resubmitted habeas petition containing only exhausted claims nunc pro tunc to date of original petition; court had improperly denied initial petition containing both exhausted and inexhausted claims).

 

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