Actual Innocence Can Overcome §2255 Statute of Limitations
The §2255 statute of limitations imposed on movants has constitutional significance. Habeas corpus has existed as a safeguard of personal liberty since the founding of the United States. The Great Writ is, in the words of former Supreme Court Justice Kennedy, “a right of first importance.” The Framers thought the writ of habeas corpus so important that they included a strict prohibition on suspension of the writ in the body of the U.S. Constitution. This article discusses the §2255 statute of limitations in the context of actual innocence.
Actual Innocence, §2255 Statute of Limitations, and the Suspension Clause
The statute of limitations found in 28 U.S.C. §2255(f) potentially implicates the Suspension Clause. “The Privilege of the Writ of Habeas Corpus,” says the Clause, “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (emphasis added). Courts have generally determined that the §2255 statute of limitations does not implicate the Suspension Clause. But there is a case where it might: actual innocence.
It’s not hard to see why. If a federal prisoner is actually innocent of a crime, and a procedural bar, such as the §2255 statute of limitations prevents, him from getting to court, the writ – which is designed for this exact circumstance — is suspended.
Actual Innocence Provides an Exception to the §2255 Statute of Limitations
The Supreme Court has recognized this, and has said that “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). The actual innocence exception, in the court’s view, is a “fundamental miscarriage of justice exception,  grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Id. at 1931. The fundamental miscarriage of justice exception also ensures that the Suspension Clause is not violated by the §2255 statute of limitations.
Courts analyze actual innocence claims in the §2255 statute of limitations context in the same way that they examine such claims in the procedural default [Link to Proc. Def. page] context. In Bousley v. United States, 523 U.S. 614 (1998), the Supreme Court established the analytical framework for addressing actual innocence claims. Bousley held that “[t]o establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him . . . [and] that ‘actual innocence’ means factual innocence, not mere legal insufficiency.” 523 U.S. at 623-24.
§2255 Statute of Limitations Exception: New Evidence
In the case of new evidence, a section 2255 movant claiming actual innocence must present “new reliable evidence — whether it be exculpatory, scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). The court will then consider all of the evidence, and make “a probabilistic determination about what reasonable, properly instructed jurors would do.” Id. at 329. If the movant can establish that in light of the new evidence, no reasonable juror would have convicted him, then the §2255 statute of limitations will not bar consideration of the claim.
§2255 Statute of Limitations: Intervening Change in the Law
Factual innocence can also be established by an intervening change in the law that establishes actual innocence. In Wooten v. Cauley, 677 F.3d 303, 307-308 (2012), the Sixth Circuit said that such a claim can be established by demonstrating “(1) the existence of a new interpretation of statutory law, (2) which was issued after the petitioner had a meaningful time to incorporate the new interpretation into his direct appeals or subsequent motions, (3) is retroactive, and (4) applies to the merits of the petition to make it more likely than not that no reasonable juror would have convicted [the petitioner].”
While the law does allow a movant who claims actual innocence to avoid the §2255 statute of limitations, the bar to successfully making such a claim is very high. The Supreme Court said as much in McQuiggin, calling tenable actual innocence claims “rare.”
Attorneys Experienced with §2255 Statute of Limitations Exceptions Based on Actual Innocence
If you or a loved one believe that you have a claim for actual innocence, we can help you. If you’ve missed the §2255 statute of limitations, we will use our hard-earned knowledge to argue that your claim must still be heard. Contact us now to discuss your case, and the options that may be available to you. Even if a 2255 is time-barred, we can discuss other options for relief.
Actual Innocence Can Overcome §2255 Statute of Limitations FAQs
Q: What is the legal standard for “actual innocence?”
A: In Bousley v. United States, 523 U.S. 614 (1998), the Supreme Court said that actual innocence is factual innocence, not legal insufficiency. To show factual innocence on collateral review, a section 2255 movant must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. This is a very difficult standard to meet.
Q: I am completely innocent of my crime of conviction, but I lost on appeal and more than one year has passed. Can I still file a section 2255 motion? Does actually innocence waive the §2255 statute of limitations?
A: Probably. Actual innocence serves to lift the procedural bar imposed by the §2255(f) statute of limitations because a person convicted of a crime who is innocent represents a miscarriage of justice.
Q: I have discovered new evidence that shows that I am innocent of the crime of which I was convicted, but more than one year has passed since my conviction became final. Can I still file a section 2255 motion even though I’m outside of the §2255 statute of limitations?
A: Yes. In order to avoid the §2255 statute of limitations, you must present “new reliable evidence” that was not presented at trial, and that would make it more likely than not that no reasonable juror would have convicted you. In these situations, the court will consider the new evidence along with the existing evidence and will make “a probabilistic determination about what reasonable, properly instructed jurors would do.” Schlup v. Delo, 513 U.S. 298, 324 (1995). If you have discovered new evidence that demonstrates your innocence, contact us today to discuss your case. Courts take a dim view of evidence discovered years after trial, and you’ll want to have your ducks in a row for this claim. Our experienced staff can help you.
Q: The law has changed such that I am now innocent of my crime of conviction, but more than one year has passed since my conviction became final. Can I still file a section 2255 motion even though I’m outside of the §2255 statute of limitations?
A: Yes. Intervening changes to the law that establish actual innocence will not be barred by the §2255(f) statute of limitations. In order to properly make this claim, you must demonstrate: (1) the existence of a new interpretation of statutory law; (2) which was issued after your appeal was finalized; (3) which is retroactive; and (4) which applies to the merits of your section 2255 motion to make it more likely than not that no reasonable juror would have convicted you. Wooten v. Cauley, 677 F.3d 303, 307-308 (6th Cir. 2012). If you believe that the law has changed and that the change makes you innocent, contact us to discuss a section 2255 motion. Our experienced attorneys will walk you through you options.
You Must be “In Custody” to File a Section 2255 Motion
Section 2255 Motions: The Statute of Limitations
Equitable Tolling Applies to the Section 2255 Statute of Limitations
Section 2255(f)(1): A Newly Recognized Right Restarts the One-Year Clock
Section 2255(f)(4): Newly Discovered Evidence Restarts the One-Year Clock