What Are the Deadlines for Filing a Federal Habeas?

In other words, it can be complicated, made even more so because the deadline for filing may be tolled (meaning time does not count toward the deadline) depending upon the circumstances.

A federal habeas petition is timely if the petition is filed within one year and 90 days after the California Supreme Court files an order denying a petition for review in a felony criminal appeal case; the additional 90 days is for the period of time in which the appellant could have filed a petition for writ of certiorari in the United States Supreme Court. Clay v. United States (2003) 537 U.S. 522, 527-528, 123 S. Ct. 1072; 155 L. Ed. 2d 88.  If the California Supreme Court reopens direct review of a case, the one-year timeline starts anew when the state Supreme Court issues its final decision. Thomson v. Lea (9th Cir. 2012) 681 F. 3d 1093, 1093-1094.  If a petition for certiorari is filed, the one-year deadline starts running on the date the petition for certiorari is denied.

If a state court reverses all or part of a sentence and remands the case for re-sentencing, the one-year timeline does not begin to run until the re-sentencing happens and any direct appeal from the re-sentencing has concluded. Burton v. Stewart (2007) 549 U.S. 147, 156-158, 127 S. Ct. 793, 166 L. Ed. 2d 628; Magwood v. Patterson (2010) 561 U.S. 320, 332-333, 130 S. Ct. 2788; 177 L. Ed. 2d 592; Smith v. Williams (9th Cir. 2017) 871 F. 3d 684, 687-688.  For information on when a misdemeanor-only case becomes final, see McMonagle v. Meyer (9th Cir. 2015) 802 F.3d. 1093.

If a person does not timely appeal or timely petition for review, the federal one-year habeas timeline starts running when the time for filing the notice of appeal or the petition for review expires. Hemmerle v. Schriro (9th Cir. 2007) 495 F. 3d 1069, 1073.  In California felony criminal cases, this means that if the defendant did not pursue a direct appeal, the one-year federal habeas timeline starts to run 60 days after the judgment is pronounced. California Rules of Court, rule 8.104.

When a state court dismisses a case because the notice of appeal was untimely filed, the dismissal decision does not "restart" the one-year timeline. Randle v. Crawford (9th. Cir. 2010) 604 F. 3d 1047, 1055.  However, if a state court allows a case to go forward even though the notice of appeal was filed late, the one-year timeline starts does not start running until the appeal case is finished. Jimenez v. Quarterman (2009) 555 U.S. 113, 119, 129 S. Ct. 681; 172 L. Ed. 2d 475.

If the defendant pursues a direct appeal, but does not file a timely petition for review in the California Supreme Court, the clock presumably starts running either 40 or 60 days after the Court of Appeal decision is issued.  There is no published case on this. 

However, 40 days is the deadline for filing a petition for review and 60 days is the deadline for the court to grant review on its own motion. California Rules of Court, rule 8.264(b); California Rules of Court, rule 8.500(e).

In a case where there is no right to a direct appeal in court – such as a denial of parole suitability, or a prison disciplinary decision resulting in a credit loss, the federal habeas timeline begins to run when the prison or parole officials’ decision becomes final. If any type of administrative appeal is available, then the clock will not start to run until either the deadline for filing or re-filing an administrative appeal expires or the administrative appeal is decided at the highest level. Shelby v. Bartlett (9th Cir. 2004) 391 F. 3d 1061, 1063; Redd v. McGrath (9th Cir. 2003) 343 F. 3d 1077, 1081 (note: since this case was decided, the BPH has abolished its administrative appeal procedure).

Other events can trigger the start of the one-year timeline. If new facts about the case are discovered, then the time starts to run on the date the facts first could have been discovered through “the exercise of due diligence.” 28 U.S.C. § 2244(d)(1); Lee v. Lampert (9th Cir. 2011) 653 F.3d 929, 933.

The one-year timeline for raising a claim can also start when a newly recognized legal right is created by the U.S. Supreme Court. 28 U.S.C. § 2244(d)(1).  However, a California Supreme Court decision in an unrelated case clarifies that state substantive or procedural law in a manner favorable to a petitioner does not trigger a new one-year deadline. Shannon v. Newland (9th Cir. 2005) 410 F. 3d 1083, 1087.

Courts may excuse a failure to comply with the one-year timeline for claims of actual innocence. Vosgien v. Persson (9th Cir. 2014) 742 F. 3d 1131, 1133; Stewart v. Cate (9th Cir. 2014) 757 F. 3d 929, 939.  Any unjustifiable delay on the petitioner’s part may be considered as a factor in determining whether actual innocence has been reliably shown, but such delay is not an absolute bar to relief. A petitioner invoking this exception “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin v. Perkins (2013) 569 U.S. 383, 133 S. Ct. 1924; 185 L. Ed. 2d 1019.

While this article appears on our website, it would be disingenuous to take too much credit for its content.  Instead, we wish to thank the Prison Law Office in Folsom, California and their wonderful treatise, California Prison and Parole Law Handbook, from which we drew a great deal of information.