Is It Too Late for Him to File? The One Year Rule

Prisoner Legal Aid

He has one year, and almost nobody tells a family when it started. If it looks like that year has run out, there are a few narrow exceptions, and every one of them depends on dates you can document. Here is how to work out his date.

Where the year comes from

The Antiterrorism and Effective Death Penalty Act (AEDPA) sets a one-year limitations period for habeas petitions — 28 U.S.C. § 2244(d) for state prisoners filing under § 2254, and 28 U.S.C. § 2255(f) for federal prisoners. File on day 366 and, absent an exception, the court can dismiss the petition without ever reaching your claims.

When the clock starts

For most people, the year begins when the judgment becomes final — meaning direct review is over. Walk through your own timeline carefully:

If you appealed and lost, and then sought review in the U.S. Supreme Court, finality comes when the Supreme Court denies or decides the petition.
If you appealed and lost but did not go to the Supreme Court, finality generally comes when the time to file there (90 days) runs out.
If you never appealed at all, finality comes when your time to file the direct appeal expired.

The statutes also list alternative start dates that apply in narrower situations — for example, when the factual basis of a claim could not have been discovered earlier with diligence, when an unconstitutional government impediment to filing is removed, or when the Supreme Court newly recognizes a right and makes it retroactive. Which trigger applies to which claim is exactly the kind of question worth getting help on before you file.

What pauses the clock — and what doesn't

For state prisoners, § 2244(d)(2) stops the clock while a properly filed state post-conviction application is pending. Two traps hide in those words. First, "properly filed" means the state petition followed the state's own filing rules — an untimely state petition may not pause anything. Second, the clock is paused, not reset: whatever days ran before you filed in state court are already spent, and the clock resumes the moment state review ends.

And a mistake we see constantly: a federal habeas petition itself does not stop the clock while it's pending.

If you think time is short

Count your days today, on paper, using your actual dates — sentencing, appeal decision, any state post-conviction filings. If the math is close or confusing, that is a reason to move faster, not slower. Equitable exceptions to the deadline exist but are genuinely rare, and no one should plan around them. Send us your dates and we'll help you see exactly where you stand.

Keep reading

Ready to talk to someone? We connect families with independent civil rights attorneys across the country. There is no cost to ask. Call 786-408-5073 (Mon to Fri 9 to 6, Sat 10 to 2 EST) or email info@prisonerlegalaid.com.