Criminal Defense of Immigrants


§ 11.63 (c. Attacking State Convictions

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After state post-conviction attacks have been exhausted, it is possible to attack a state conviction in federal court if the client is still in some form of actual or constructive “custody,” and if the one-year statute of limitations has not expired.  The federal habeas corpus petition, under 28 U.S.C. § 2254, must normally be filed within 15 months after the date on which the highest state court affirmed the conviction or denied review. 


Federal coram nobis may not be employed to attack a state conviction.


                AEDPA created a new one-year statute of limitations for filing a habeas petition in federal court attacking a state conviction after the latest of the same events given above for federal habeas.[327]  The running of this period is tolled, or stopped, while a state petition for post-conviction relief is pending:


The time during which a properly filed application for State post‑conviction or other collateral review . . . is pending shall not be counted toward any period of limitation under this subsection.[328]


                For a state-court conviction, the one-year period does not begin to run until the decision of the highest state court is final, i.e., until the period when review in the United States Supreme Court can be sought has expired (90 days after the date of decision), or after the issuance of the opinion or order of the United States Supreme Court if review in that court is conducted.  Therefore, if the state Supreme Court denies review on January 1, 1999, the period within which certiorari can be sought expires 90 days thereafter, on approximately April 1, 1999, and the one-year statute of limitations for filing a petition for federal post-conviction relief expires on about April 1, 2000.  The actual days must be counted; it is dangerous to assume that each month has exactly 30 days, since this is not in fact the case.

PRACTICE AID:  See Appendix 2 of N. Tooby, Post-Conviction Relief for Immigrants (2004) for a Federal Habeas Statute of Limitations Worksheet for aid in computing the date on which a habeas petition under 28 U.S.C. § 2254 is due.


[327] 28 U.S.C. § 2244(d)(1), as amended by AEDPA § 101.

[328] 28 U.S.C. § 2244(d)(2), as amended by AEDPA § 101.