Criminal Defense of Immigrants
§ 11.61 (a. Motion to Vacate Sentence Under § 2255
For more text, click "Next Page>"
If there has been no appeal, the motion must normally be filed within one year and 10 days after entry of judgment. AEDPA created a new one-year statute of limitations for filing a federal § 2255 motion or habeas petition in federal court attacking a federal conviction after the latest of the following events:
(a) the date the judgment became final at the conclusion of direct review;
(b) the date on which the constitutional right asserted was initially recognized by the Supreme Court; or
(c) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
For a federal conviction, the one-year period does not begin to run until the judgment of conviction has become final. Normally, that would be when the period within which a notice of appeal can be filed has expired, if no appeal was taken, which is 10 days after the entry of the judgment of conviction. Therefore, in a federal criminal case, the petition for post-conviction relief must be filed within one year and 10 days after the entry of the judgment if no appeal is taken from the conviction.
If an appeal is taken from the conviction, the petition for post-conviction relief must normally be filed within one year and 90 days after the decision of the court of appeals affirming the conviction. The one-year statute of limitations begins to run when the decision of the court of appeals is final, i.e., when the period within which review in the United States Supreme Court can be sought has expired (90 days after the date of decision) or on the date of the issuance of the opinion or order of the United States Supreme Court if review in that court is conducted.
The statute of limitations defense can be waived by the government, in which case the district court has no authority to dismiss a petition as time-barred.
 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (hereinafter AEDPA).
 See R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure, § 5.2 (4th ed. 2001, 2002 Supplement).
 28 U.S.C. § 2255, as amended by AEDPA § 105(1).
 Federal Rule of Appellate Procedure 4(b)(1)(A)(i).
 Nardi v. Stewart, 354 F.3d 1134 (9th Cir. Jan. 20, 2004) (government waived statute of limitations defense, since the answer to the habeas petition failed to assert it, as required by FRCP rule 8(c), so district court lacked authority to dismiss the petition as time-barred).