Post-Conviction Relief for Immigrants

In 1995, Congress enacted a one-year statute of limitations applicable to federal habeas corpus petitions filed by state prisoners pursuant to 28 U.S.C. § 2254, and federal prisoners under 28 U.S.C. § 2255.  State post-conviction counsel must be aware of the applicable deadlines in order to preserve the possibility for federal review of constitutional error.  The statute of limitations defense is a defense possessed by the government, which must assert it or the court may not dismiss on this basis.[90] 

[90] Nardi v. Stewart, 354 F.3d 1134 (9th Cir. January 20, 2004) (government waived statute of limitations defense, since the answer to the habeas petition failed to assert it, as required by Fed. Rule Crim. P. 8(c), so district court lacked authority to dismiss the petition as time-barred).