Post-Conviction Relief for Immigrants

Many states have also added a statute of limitations to their principal post-conviction remedy.[297]  The AEDPA one-year statute of limitations does not restrict state habeas corpus or other forms of state post-conviction relief.

The prosecution may argue that the petitioner did not pursue post‑conviction relief in a timely manner.[298]  It is thus wise to pursue relief promptly, and where an error could have been addressed by an earlier procedure, i.e., direct appeal, the reasons why it was not addressed earlier should be alleged in the petition.  One can argue that drastic recent changes in immigration law, for the first time, make it necessary to challenge the conviction.  Delay in bringing the petition, however, should not result in dismissal of the petition unless “the state . . . has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.”[299]  This is a limited doctrine:  the state must have lost habeas witnesses with favorable testimony.  The petitioner can usefully resort to the cases holding the defense to a very high standard in showing prejudice from the state’s delay in bringing criminal charges.  The Constitution arguably requires the same standard be used to assess both prosecution and defense delays.[300]

[297] Those states include Alabama, Alaska, Arizona, Colorado, Delaware, Florida, Idaho, Illinois, Iowa, Mississippi, Missouri, Montana, Nevada, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming.  See State Post-Conviction Remedies at 120-121.

[298] See In re Ronald E., 19 Cal.3d 315, 322, n.3, 137 Cal.Rptr. 781, 785 n.3 (1977) (petitioner should have alleged s/he was unaware of the violation until after the time to appeal had expired).

[299] Rules Governing Section 2254 Cases in the United States District Courts, Rule 9(a).

[300] Wardius v. Oregon, 412 U.S. 470, 472, 474 n.6 (1973) (“Any criminal procedures that provide ‘nonreciprocal benefits to the State’ in regard to the investigation, preservation, and presentation of its evidentiary case should be constitutionally assailable ‘when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial.’”); II A. Amsterdam, Trial Manual 5 for the Defense of Criminal Cases 212 (1989).