The first question to ask is on what date does the one-year period begin to run?  The statute, 28 U.S.C. § 2244(d)(1)(A), establishes four possible dates:

 

(1) 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) the date on which the impediment to filing an application created by the state action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;

 

(3) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

 

(4) the date on which the factual predicate of the claim or claims presented could have been discovered through due diligence.

 

The most common starting date is the date the judgment became final on direct appeal or when the time for appellate review expired.  The date the judgment became final is as follows:

 

·    If all direct appeal proceedings concluded prior to the effective date of the AEDPA, April 24, 1996, the one-year period begins to run on that date.  Unless it was tolled (see below), the limitations period expired on April 23, 1997.

 

·    If no direct appeal was filed, the conviction became final after the time for seeking appellate review expired.[91]  Thus, for a California felony conviction, for example, 60 days are added to the date of sentencing, while only 30 days are added for an appeal of a misdemeanor conviction, before the conviction is considered final, and the one-year period begins to run.[92]

 

·    If a timely direct appeal was pursued, the finality date is 90 days after the state supreme court denies the Petition for Review, which is the deadline within which a petition for certiorari must be filed in the U.S. Supreme Court.[93]

 

·    If a petition for a writ of certiorari is filed with the U.S. Supreme Court, the date on which the petition is denied will signal the start of the one-year limitations period.

 

·    If the appellate court has remanded the case to the trial court, the conviction is not considered final until the lower court acts on the remand and the time to appeal from any resulting conviction has expired.[94]

The other date that bears mention is the date on which the petitioner could have discovered the factual predicate of the claims with due diligence under 28 U.S.C. § 2244(d)(1)(D).  The time begins to run under this subsection when the petitioner knows or should have known the facts that underlie the claim, but not their legal significance.[95]

 

Where the petitioner did not, and could not, have discovered the factual basis of the claim until a later time, the statute will not begin to run until that time.  In Hasan v. Galaza,[96] the defendant did have knowledge at the time of trial that his attorney had failed to investigate possible jury tampering, but only later learned what the results of such investigation would have shown — a romantic relationship between a juror and a prosecution witness.  Since the defendant through no fault of his own was unaware of the factual basis necessary to establish prejudice, the statute of limitations did not begin to run until the petitioner discovered the facts necessary to establish both prongs of constitutionally inadequate assistance of counsel: deficient performance and prejudice.

 

[91] Cf. United States v. Colvin, 204 F.3d 1221 (9th Cir. 2000).

[92] Cal. Rules of Ct. 31(a), 182.

[93] Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).  It may be that an additional thirty days are added to the date the California Supreme Court denies review.  That is because Cal. Rules of Court 24 provides that “[a] decision of the Supreme Court becomes final 30 days after filing,” Bunney v. Mitchell, 241 F.3d 1151 (9th Cir. 2001), in which case, the 90 days for petitioning the United States Supreme Court would be extended by 30 days.  Considering the lack of case law regarding application of Rule 24 to any statute of limitations, however, counsel would be well advised not to rely on this additional time in developing a strategy and timeline for relief in federal court.  The argument may be used to provide post-conviction counsel a means to save an otherwise time-barred petition.

[94] United States v. Colvin, 204 F.3d 1221 (9th Cir. 2000).

[95] See, e.g., Bunney v. Mitchell, 241 F.3d 1151, 1156 (9th Cir. 2001) (rejecting claim that the statute did not begin to run until petitioner’s post-conviction counsel investigated the case and discovered the factual predicate, finding that petitioner knew the underlying facts well before the statute had run, even though s/he had failed to develop the evidence in support until much later).

[96] Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001).

POST CON RELIEF - HABEAS - FEDERAL
Evans v. Chavis, ___ U.S. ___ (Jan. 10, 2006) (court of appeals decision that California prisoner's request for federal appellate review, made three years after a lower state court ruled against him, was timely under AEDPA, is reversed where the circuit court departed from the Supreme Court's interpretation of the AEDPA as applied to California's system in Carey v. Saffold, 536 U. S. 214 (2002)).

POST CON RELIEF - FEDERAL - STATUTE OF LIMITATIONS - AEDPA STATUTE OF LIMITATIONS AFTER OUT-OF-TIME APPEAL STARTS WHEN SUPREME COURT AFFIRMS OR DENIES CERTIORARI OR THE TIME FOR SEEKING CERTIORARI EXPIRES
Jimenez v. Quarterman, __ U.S. __, 129 S.Ct. 681, 685-687 (2009) ("[W]here a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet "final" for purposes of [28 U.S.C.] 2244(d)(1)(A) [until] "the conclusion of direct review or the expiration of the time for seeking such review" including the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal, i.e., when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or, if the prisoner elects not to pursue certiorari review, when the time for seeking certiorari expires).