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If you can show you are actually innocent — that, with all the evidence, it is more likely than not no reasonable juror would convict you — a court may hear your claim even though the one-year deadline has passed. Very few people meet this standard.
Habeas corpus has protected personal liberty since the founding. In the words of former Supreme Court Justice Kennedy, the Great Writ is “a right of first importance.” The Framers barred suspending the writ in the body of the Constitution itself. That history is part of why courts make room for claims of innocence even when a deadline has passed.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
Why does actual innocence matter to the deadline?
The Suspension Clause says “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (emphasis added). U.S. Const. art. I, § 9, cl. 2.
Courts have generally held that the one-year deadline in 28 U.S.C. § 2255(f) does not violate that clause. But if an innocent person were locked out of court only because of a deadline, the concern would be real. The Supreme Court’s answer is an innocence exception.
What is the actual-innocence exception?
The Supreme Court held 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, 569 U.S. 383, 386 (2013).
The Court called this a “miscarriage of justice exception” grounded in the “equitable discretion” of habeas courts to see that constitutional errors do not result in the imprisonment of innocent people. Id. at 392. McQuiggin involved a state prisoner’s deadline, and federal appeals courts apply the same gateway to § 2255 motions.
Two cautions. First, the gateway lets the court hear a separate constitutional claim; it is not a win on its own. Second, a long, unexplained delay in raising the new evidence counts against its reliability. Id. at 399-400.
What does “actual innocence” mean?
Courts use the same test they use for procedural default. “To 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.” Bousley v. United States, 523 U.S. 614, 623 (1998).
And “‘actual innocence’ means factual innocence, not mere legal insufficiency.” Id. In other words, it is not enough to argue the evidence was thin. You must show you did not do it — or that what you did is not a crime.
What kind of new evidence counts?
You 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 then looks at all the evidence, old and new, and makes “a probabilistic determination about what reasonable, properly instructed jurors would do.” Id. at 329. If no reasonable juror would have convicted you in light of the new evidence, the deadline will not bar the claim.
What about a change in the law?
Sometimes the Supreme Court reads a criminal statute more narrowly after a conviction, so that the conduct was never a crime. That can make a person actually innocent. Bousley, 523 U.S. at 620-24 (claim based on Bailey v. United States, 516 U.S. 137 (1995)).
How the one-year deadline applies to that kind of claim depends on the case. Section 2255(f)(3) may give a fresh year from the date of the Supreme Court’s decision in some circumstances. If you already filed a § 2255 motion, Jones v. Hendrix, 599 U.S. 465 (2023), holds that you cannot use a § 2241 petition to raise a new statutory-interpretation claim that § 2255(h) would bar.
How often does this work?
Rarely. The Supreme Court stressed that tenable actual-innocence gateway pleas are “rare.” McQuiggin, 569 U.S. at 386.
Common questions
What is the legal standard for “actual innocence”?
Actual innocence means factual innocence, not legal insufficiency. You must show that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted you. Bousley v. United States, 523 U.S. 614, 623 (1998). This is a very hard standard to meet.
I am innocent, I lost my appeal, and more than a year has passed. Can I still file a § 2255 motion?
Possibly. If you can meet the actual-innocence standard, the deadline may not bar your constitutional claim. McQuiggin v. Perkins, 569 U.S. 383 (2013). Saying you are innocent is not enough; you need reliable evidence.
I found new evidence that shows I am innocent, but more than a year has passed. What can I do?
You must present “new reliable evidence” that was not presented at trial, and that makes it more likely than not that no reasonable juror would have convicted you. The court weighs the new evidence with everything else. Schlup v. Delo, 513 U.S. 298, 324-29 (1995).
Also check § 2255(f)(4): the year may start when the new facts could have been discovered with reasonable effort. Courts look hard at evidence that surfaces years after trial, so move quickly and keep records of how and when you found it. Book a consultation with Brandon Sample to talk it through.
The law has changed and I am now innocent of my crime. Can I still file?
Maybe. A Supreme Court decision narrowing a criminal statute can support an actual-innocence claim, as in Bousley. Whether it is timely, and whether you need permission for a second motion, depends on your case history. Book a consultation with Brandon Sample to talk through your options.
Related pages
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)(3): A Newly Recognized Right Restarts the One-Year Clock
Section 2255(f)(4): Newly Discovered Evidence Restarts the One-Year Clock
Section 2255 Exhaustion Issues
Questions about your case? Book a consultation to talk it through with Brandon Sample.