The One-Year § 2255 Deadline

You have one year to file a § 2255 motion. For most people, the year starts when the conviction becomes “final” — usually 14 days after judgment if there was no appeal, or 90 days after the appeals court rules if there was an appeal. Courts enforce this deadline strictly.

A § 2255 motion asks the court that sentenced you to vacate, set aside, or correct the sentence because “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) added a one-year statute of limitations — a filing deadline. 28 U.S.C. § 2255(f). Anyone thinking about a § 2255 motion needs to understand it and meet it.

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

When does the one-year clock start?

The year runs from the latest of four dates. 28 U.S.C. § 2255(f):

• (1) the date the judgment of conviction becomes final;
• (2) the date an illegal or unconstitutional government roadblock that prevented you from filing is removed;
• (3) the date the Supreme Court first recognized the right you are relying on, if that right is new and has been made retroactive to cases on collateral review; or
• (4) the date the facts supporting your claim could have been discovered through “the exercise of due diligence” — reasonable effort.

When does a judgment become final? (§ 2255(f)(1))

It depends on what happened after sentencing:

• No appeal. The judgment becomes final when the time to appeal runs out. In a criminal case, a defendant’s notice of appeal is due 14 days after the judgment is entered. Fed. R. App. P. 4(b)(1)(A).
• Appeal, but no Supreme Court petition. The judgment becomes final when the 90-day time to ask the Supreme Court for review (a “petition for certiorari”) runs out. Clay v. United States, 537 U.S. 522, 532 (2003); Sup. Ct. R. 13.1.
• Supreme Court petition filed. The judgment becomes final when the Supreme Court denies the petition or decides the case on the merits. Clay, 537 U.S. at 527.

What if the government blocked you from filing? (§ 2255(f)(2))

If unlawful or unconstitutional government action prevented you from filing, the year starts when that roadblock is removed. 28 U.S.C. § 2255(f)(2).

Prisoners often raise this when the prosecution hid favorable evidence. Hiding evidence that is favorable to the defense and material to guilt or punishment violates due process. Brady v. Maryland, 373 U.S. 83, 87 (1963). Whether a hidden-evidence claim fits under (f)(2) or (f)(4) depends on the facts and the circuit.

What if the Supreme Court recognizes a new right? (§ 2255(f)(3))

If your claim is based on a right the Supreme Court newly recognized and that has been made retroactive to cases on collateral review, the year starts on the date the Supreme Court first recognized the right. 28 U.S.C. § 2255(f)(3).

This is a trap. The clock starts on the day of the Supreme Court’s original decision — not on the later day a court says the right is retroactive. Dodd v. United States, 545 U.S. 353, 357-59 (2005). So do not wait for a retroactivity ruling before you file. Read more about newly recognized rights under § 2255(f)(3).

What if you discover new facts? (§ 2255(f)(4))

If your claim is based on facts you could not have found earlier, the year starts on “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4).

Note that it is the date the facts could have been found with reasonable effort, not the date you actually found them. Whether you acted with due diligence depends on the facts and sometimes requires a hearing. Courts consider the realities of being in prison. Read more about newly discovered evidence under § 2255(f)(4).

What happens if you miss the deadline?

The court will usually dismiss the motion. There are narrow exceptions, like equitable tolling and actual innocence, but you should not count on them.

A dismissal for lateness can also count as your first motion, which means a later § 2255 motion may be treated as second or successive.

Common questions

Related pages

You Must be “In Custody” to File a Section 2255 Motion

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(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.