Newly Discovered Evidence and Due Diligence: Restarting the One-Year Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) fundamentally changed the landscape of federal habeas corpus litigation. Significantly, the AEDPA imposed a one-year statute of limitations on the filing of a section 2255 motion. With few exceptions, a due diligence, one-year statute of limitations, newly discovered evidencefederal prisoner must file a section 2255 motion within one year of his or her conviction becoming final. One exception, found in 28 U.S.C. §2255(f)(4), allows a prisoner to file a section 2255 motion within one year of “the date upon which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” In plain English, this means finding newly discovered evidence.

The Newly Discovered Evidence Exception to the One-Year Statute of Limitations

The need for a hybrid tolling statute such as §2255(f)(4) is easy to understand. Without this section, a federal prisoner who discovers new evidence showing that his or her sentence was imposed in violation of the Constitution or laws of the United States would be prohibited from filing a section 2255 motion outside of the generic, one-year-from-finality period. Such a situation would offend well-established notions of justice. This newly discovered evidence exception to the one-year statute of limitations, along with the practice of due diligence, can allow qualified criminal defendants to get back in court.

The Practice of Due Diligence Concerning Newly Discovered Evidence

For purposes of §2255(f)(4), the one-year statute of limitations clock begins to run when the prisoner, through the exercise of due diligence, could have discovered the facts supporting the motion. This means that the clock does not necessarily begin to run when the prisoner actually discovers the relevant facts. In the event that a court determines that the prisoner did exercise due diligence, “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). This begs the question: What constitutes due diligence in the context of newly discovered evidence?

What is Due Diligence and How Does it Impact 2255 Motions?

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). According to the 11th Circuit, “[ 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 v. United States, 291 F.3d 708, 712 (11th Cir. 2002). Instead, “the 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.

If a court determines that a section 2255 movant did not exercise due diligence, the claim may still be timely. In such a case, the court will inquire into the date on which the facts would have been discovered had the prisoner exercised due diligence. If that date is within one year of the filing, the motion will be timely under §2255(f)(4).

Newly Discovered Evidence: Brady v. Maryland

A common claim brought pursuant to §2255(f)(4) alleges the new discovery of exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963), requires the government to hand over all exculpatory evidence prior to trial. When a prisoner discovers that such evidence existed, but was not turned over, he or she has a cognizable section 2255 claim. Section 2255(f)(4) permits the filing of such a claim beyond the typical one-year-after-finality timeframe, if the movant exercised due diligence in discovering the evidence. This is an exception to the one-year statute of limitations.

Johnson v. United States: Court Rulings, Not Only Evidentiary Matters Permissible

The kind of facts that support a timely filing under 2255(f)(4) are not always evidentiary in nature. In Johnson v. United States, 544 U.S. 295 (2005), the Supreme Court held that §2255(f)(4) facts can include court rulings. This holding is highly beneficial to federal prisoners whose sentences were enhanced because of prior state convictions. If an earlier state conviction used to enhance a federal sentence is vacated, the prisoner is entitled to file a motion seeking a sentence reduction. Section 2255(f)(4) allows for the filing of such a motion within one year of the discovery, through the exercise of due diligence, of such a vacature.

Difference Between Newly Discovered Court Rulings as Opposed to Newly Discovered Legal Theories

It is important to note that even though newly discovered court rulings can qualify as “facts” for purposes of §2255(f)(4), newly discovered legal theories cannot. This means that when a prisoner is in possession of newly discovered court rulings, the §2255(f)(4) one-year statute of limitations clock begins to run when the rulings could have been discovered through the exercise of due diligence, not when the prisoner discovers the legal consequences of those rulings. This distinction is complex and can make the difference between a successful section 2255 motion and a failure.

Experienced Newly Discovered Evidence Attorneys: Professional Help with Due Diligence and Restarting the One-Year Statute of Limitations

At the Law Offices of Brandon Sample, we know the ins and outs of §2255(f)(4). If you or a loved one is in possession of newly discovered facts related to a federal conviction, or if you would like us to research in an attempt to identify such new facts, which could reopen the one-year statute of limitations, contact us today for professional assistance. Time is of the essence. Federal courts are known to dismiss untimely section 2255 motions, even when such motions are meritorious.

Newly Discovered Evidence and Due Diligence: Restarting the One-Year Statute of Limitations FAQs

Q: I have discovered new evidence about my case. Can I file a section 2255 motion based on this newly discovered evidence?

A: If post-trial, you discover evidence that supports section 2255 relief that was unavailable during your trial, you can file a section 2255 motion. In such a situation, the one-year statute of limitations begins to run when, through the exercise of due diligence, you could have discovered the evidence — not necessarily when you did. You must act quickly to receive the benefit of restarting the one-year statute of limitations.

Q: The government withheld evidence that would have helped me at trial. What can I do?

A: When the government withholds relevant, exculpatory evidence, it violates the strictures of Brady v. Maryland, 373 U.S. 83 (1963). In such a case, you may file a section 2255 motion within one year of when you could have discovered the evidence.

Q: The state charges used to enhance my federal sentence have been vacated. Can I seek a sentence reduction through section 2255?

A: Yes. Newly discovered “facts” that toll the §2255 one-year statute of limitations can include court rulings. Johnson v. United States, 544 U.S. 295 (2005). When a state court vacates a conviction used to enhance a federal sentence, the prisoner has one year from when he or she could have discovered the evidence to seek a vacature, through the exercise of due diligence, to file the section 2255 motion. If you find yourself in this situation, contact us immediately. We can help you ensure that you don’t miss the one year clock.

Q: I have just run across older case law that might help my case. Can I file a section 2255 motion?

A: If more than one year has passed since your conviction became final, probably not. The courts generally do not consider newly discovered legal theories an acceptable reason to toll 2255(f)(4). There may be alternative ways to file a timely motion, however. Contact us to speak with an experienced section 2255 attorney about your case and about restarting the one-year statute of limitations clock.

Related Content

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)(1): A Newly Recognized Right Restarts the One-Year Clock

Section 2255 Exhaustion Issues