Post-Conviction Relief for Immigrants

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.