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If your claim is based on facts you could not have found earlier, you may get a new one-year deadline. The year starts when the facts could have been found with reasonable effort — called “due diligence” — not necessarily when you actually found them. 28 U.S.C. § 2255(f)(4).
The AEDPA added a one-year deadline to § 2255 motions. For most people, the year runs from the date the conviction became final. But § 2255(f)(4) lets the year run instead from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
Why does this exception exist?
Without it, a person who learns of a serious violation long after the conviction became final would be locked out of court. Section 2255(f)(4) lets that person file — if they acted with reasonable effort.
When does the § 2255(f)(4) clock start?
It starts when you could have discovered the facts with due diligence. That may be earlier than when you actually found them.
If the court decides you did act diligently, “then the one-year limitation period would begin to run on the date the petitioner actually discovered the relevant facts, because the dates of actual and possible discovery would be identical.” Aron v. United States, 291 F.3d 708, 711 (11th Cir. 2002).
What is due diligence?
Reasonable effort — not perfect effort. Section 2255(f)(4) “does not require the maximum feasible diligence, only due, or reasonable, diligence.” Jefferson v. United States, 730 F.3d 537, 544 (6th Cir. 2013).
The Eleventh Circuit put it this way: “[d]ue diligence . . . does not require a prisoner to undertake repeated exercises in futility or to exhaust every imaginable option, but rather to make reasonable efforts.” Aron, 291 F.3d at 712.
Courts consider the realities of prison. “[T]he key question is whether, taking into account ‘the reality of the prison system,’ [the movant] could have discovered the factual predicate for his claim[] using due diligence more than a year before filing [his section 2255 motion].” Jefferson, 730 F.3d at 544.
Even if the court finds you were not diligent, your motion may still be on time. The court will ask when a diligent person would have found the facts. If that date is less than a year before you filed, the motion is timely under § 2255(f)(4).
What about evidence the prosecution hid?
A common § 2255(f)(4) claim involves favorable evidence the prosecution did not turn over. Under Brady v. Maryland, 373 U.S. 83, 87 (1963), the prosecution violates due process when it suppresses evidence favorable to the defense that is material to guilt or punishment.
If you later learn of that kind of evidence, you may be able to file within one year of when you could have discovered it.
Can a court ruling count as a new “fact”?
Yes, in one important situation. If a prior conviction (often a state conviction) was used to make your federal sentence longer, and that prior conviction is later vacated, the vacatur counts as a new fact. Johnson v. United States, 544 U.S. 295, 302 (2005).
But there is a catch. The year starts when you get notice of the order vacating the prior conviction — only if you went after that vacatur diligently in state court after your federal judgment was entered. Id. at 310. Waiting years to challenge the old conviction can cost you this exception.
Is a newly found legal theory a new fact?
No. A new court order in your own case (like the vacatur above) can be a “fact.” A legal argument you just learned about is not. Finding an older case that helps you does not restart the clock.
Common questions
I found new evidence about my case. Can I file a § 2255 motion based on it?
Possibly. If the evidence supports a § 2255 claim and could not have been found earlier with reasonable effort, the one-year clock may start when it could have been found. Act fast — every month you wait may count against you.
The government withheld evidence that would have helped me at trial. What can I do?
Withholding favorable, material evidence violates Brady v. Maryland, 373 U.S. 83 (1963). You may be able to file a § 2255 motion within one year of when you could have discovered the evidence.
A state conviction used to enhance my federal sentence was vacated. Can I use § 2255?
Possibly. The vacatur is a new “fact” under § 2255(f)(4). Johnson v. United States, 544 U.S. 295 (2005). Your year generally starts when you received notice of the vacatur order — but only if you pursued the vacatur diligently after your federal sentencing. Book a consultation with Brandon Sample as soon as the state court rules.
I just found older case law that might help me. Can I file a § 2255 motion?
If more than one year has passed since your conviction became final, probably not under § 2255(f)(4). Newly found legal arguments are not new “facts.” A different start date — such as a new retroactive Supreme Court decision under § 2255(f)(3) — might apply. Book a consultation with Brandon Sample to talk it through.
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
Actual Innocence Can Overcome the Section 2255 Statute of Limitations
Section 2255(f)(3): A Newly Recognized Right Restarts the One-Year Clock
Section 2255 Exhaustion Issues
Questions about your case? Book a consultation to talk it through with Brandon Sample.