28 USC 2254: Deadlines, Exhaustion, and Filing the Petition

28 U.S.C. § 2254 gives a person serving a state sentence a way to ask a federal court to review whether the state proceedings that led to the conviction or sentence violated the U.S. Constitution or federal law. The federal court does not retry the case. It examines the state court process against federal constitutional standards. You have one year from the date your conviction becomes final to file, and missing that deadline usually ends federal review for good.¹ Most petitions fail. For those with a genuine constitutional claim, this is still the main route to federal oversight of a state criminal case.

Who Can File

Two threshold conditions decide whether a federal court will even look at your petition.

You must be “in custody” under a state court judgment. That does not mean only physical incarceration. People on parole, probation, bail after conviction, released on their own recognizance, or serving a conditionally suspended sentence all qualify. What matters is that the state still holds some meaningful legal control over your liberty.²

Your claim must also rest on a violation of the U.S. Constitution, federal law, or a federal treaty. State law mistakes do not qualify unless they also amount to a federal constitutional violation. You need to identify a specific federal protection the state failed to honor: effective counsel under the Sixth Amendment, due process under the Fourteenth, freedom from unlawful searches under the Fourth, and so on.²

The One-Year Filing Deadline

Most people who lose federal review lose it here, without ever getting a hearing on the merits. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) gives you one year to file. The clock starts on whichever of these dates comes latest:¹

The date your conviction became final, meaning after direct appeals end or after the time to seek further direct review expires. If you did not appeal, the clock starts when the appeal window closed.
The date a government-created obstacle to filing was removed, if the state actively blocked you (for example, by hiding exculpatory evidence).
The date the Supreme Court recognized a new constitutional right and made it retroactive to cases on collateral review.
The date you discovered, or through reasonable diligence should have discovered, the factual basis for your claim.

Statutory Tolling

The one-year clock pauses while a properly filed state post-conviction petition or similar collateral challenge is pending in state court.¹ “Properly filed” is the trap. If the state court rejects your petition because you filed it in the wrong court or missed a state deadline, the federal clock may not have paused at all. Every day between the end of your direct appeal and the filing of a state collateral challenge counts against your year, and the clock restarts as soon as the state courts finish with your challenge.

Equitable Tolling

A federal court can excuse a late filing in rare cases. In Holland v. Florida, the Supreme Court said you must show two things: reasonable diligence in pursuing your rights, and an extraordinary circumstance beyond your control that prevented timely filing.³ Routine attorney negligence does not qualify. Egregious misconduct, such as an attorney actively lying to a client about deadlines, may. Courts apply this exception sparingly.

The Actual Innocence Gateway

Even after the one-year deadline passes, a credible showing of actual innocence can open the door. In McQuiggin v. Perkins, the Supreme Court held that such a showing overcomes the AEDPA time bar.⁴ The standard is high. You must present new reliable evidence showing it is more likely than not that no reasonable juror would have convicted you. The court weighs all available evidence, including material excluded or unavailable at trial. Unexplained delay in coming forward weakens the case but does not automatically bar relief.

Exhausting State Court Remedies

Before a federal court will consider your petition, you must give the state courts a full chance to address every federal claim you plan to raise. In most states, that means presenting the specific federal claim at the trial court, the intermediate appellate court, and the state supreme court.² You cannot present an issue as a state-law claim in state court and then reframe it as federal in your habeas petition. The state courts must have been told clearly that you were alleging a federal constitutional violation.

The federal court will dismiss an unexhausted petition unless no state process is available or the available process would be ineffective at protecting your rights.² These exceptions rarely apply. The more common problem is a mixed petition, where some claims are exhausted and others are not, which the federal court sends back.

Procedural Default

Exhaustion and procedural default sound alike and are often confused. Exhaustion asks whether you raised the claim in state court. Procedural default asks whether the state court refused to hear the claim because you broke a state procedural rule, such as filing too late under state law, using the wrong type of motion, or failing to object at trial.

When a state court rejects a claim based on an independent and adequate state procedural rule, the federal court generally treats the claim as defaulted and refuses to reach the merits. Under Coleman v. Thompson, you can overcome a default only by showing “cause” for the default and “actual prejudice” from the violation, or by demonstrating that refusing to hear the claim would result in a fundamental miscarriage of justice, essentially that you are actually innocent.⁵

One narrow exception, from Martinez v. Ryan, applies to ineffective-assistance-of-trial-counsel claims. If your state required you to raise that kind of claim in post-conviction proceedings rather than on direct appeal, and you had no lawyer during that proceeding or your post-conviction lawyer performed deficiently, that failure can supply “cause” to excuse the default. The underlying claim of trial counsel’s ineffectiveness must be substantial.⁶

Preparing and Filing the Petition

The standard form is AO 241, “Petition for Relief From a Conviction or Sentence By a Person in State Custody,” available from any U.S. District Court clerk’s office.⁷ It asks for the date of the state court judgment, docket numbers from every prior proceeding, the courts that reviewed the case, and the dates of key orders.

Each ground for relief must be stated separately, with a concise account of the facts showing how the constitutional violation happened. Skip vague claims. Point to specific testimony, evidence rulings, or procedural failures in the record, and tie every factual assertion to the constitutional amendment you rely on. The form also asks what relief you want, whether that is vacating the conviction, ordering a new trial, or something else.

You sign the petition under penalty of perjury. A false statement of material fact can result in perjury charges and immediate dismissal.⁷ Attach transcripts and prior appellate briefs where you can. They give the federal court the state-court context it needs.

Where to File, Fee, and In Forma Pauperis

File in the U.S. District Court for the district where you are held or where you were convicted. The filing fee is $5, well below the $350 that applies to most federal civil cases.⁸ If you cannot pay it, apply to proceed in forma pauperis. Prisoners must submit a certified copy of their prison trust fund account statement covering the six months before filing.⁹

What Happens After You File

A federal judge or magistrate judge screens the petition first. If it plainly shows you are not entitled to relief, for example if the deadline clearly passed or you never raised the claim in state court, the court can dismiss it without requiring the state to respond.¹⁰

If the petition survives screening, the court orders the respondent, usually the prison warden or the state attorney general, to file a formal response addressing the merits and attaching the relevant state court record.¹⁰ A magistrate judge often handles scheduling and may issue a report and recommendation. You typically get to file a reply. The district judge makes the final decision, usually on the paper record without an oral hearing.

Appointment of Counsel

There is no automatic right to a lawyer in habeas proceedings. The court can appoint one if it finds the interests of justice require it and you cannot afford counsel.¹¹ Appointment is most common in complex cases, cases needing an evidentiary hearing, and capital cases. Most habeas petitioners handle their own cases. If a lawyer is appointed and the representation is inadequate, the court can substitute a different attorney.

The Standard for Winning

Winning a Section 2254 petition is difficult, and the reason is AEDPA’s deference standard. When a state court has decided your federal claim on the merits, the federal court cannot substitute its own judgment. It can grant relief only if the state court’s decision falls into one of two categories:²

Contrary to clearly established federal law. The state court applied a rule that directly contradicts a Supreme Court holding, or reached the opposite result on facts essentially identical to a prior Supreme Court case.
An unreasonable application of clearly established federal law. The state court identified the right Supreme Court principle but applied it to your facts in an objectively unreasonable way.

Relief is also available if the state court’s decision rested on an unreasonable reading of the facts given the evidence in the record.² State court factual findings are presumed correct. You must overcome that presumption with clear and convincing evidence.

In Williams v. Taylor, the Supreme Court drew a hard line between a decision that is merely wrong and one that is unreasonably wrong. A federal judge who simply disagrees with the state court cannot grant relief. The error must be so obvious that no fair-minded jurist could reach the same conclusion. “Clearly established federal law” means Supreme Court holdings, not lower federal court decisions. This is where most petitions die. A petitioner may have a plausible argument that something went wrong but cannot show the state court crossed the line from debatable to indefensible.

Harmless Error

Even after you prove a constitutional violation, the federal court still asks whether the error mattered. Under Brecht v. Abrahamson, the error must have had a “substantial and injurious effect or influence” on the jury’s verdict before a federal court will grant relief.¹² A minor procedural misstep that did not change the trial’s course will not undo a conviction, even if it technically violated your rights.

Evidentiary Hearings

Federal habeas courts resolve most petitions on the state court paper record. A new evidentiary hearing, where you present live testimony or new evidence, is tightly restricted. If you failed to develop the factual basis in state court, the federal court generally cannot hold a hearing unless your claim relies on either a new retroactive Supreme Court constitutional rule or a factual basis you could not have discovered earlier through reasonable diligence. You must also show by clear and convincing evidence that no reasonable factfinder would have found you guilty but for the constitutional error.¹³

The restriction reflects AEDPA’s core philosophy. The state court proceedings are the main event. Federal habeas review is meant to evaluate what happened there, not create a parallel trial. Petitioners with new evidence carry a double burden: explain why the evidence was not developed in state court, then show it would have changed the outcome.

Appealing a Denial

If the district court denies your petition, you cannot appeal automatically. You need a Certificate of Appealability (COA), issued only on a “substantial showing of the denial of a constitutional right.”¹⁴ The certificate must specify the issues that meet the threshold. The district court often addresses the COA in the same order that denies the petition, but you can also request one directly from the circuit court.

Under Slack v. McDaniel, the question is whether reasonable jurists could debate the resolution of the petition, or at minimum whether the issues deserve encouragement to proceed further.¹⁵ When the district court denied on procedural grounds, such as the statute of limitations, you must show that both the procedural ruling and the underlying constitutional claim are debatable. Without a COA, the appeal ends.

Second or Successive Petitions

AEDPA sharply limits filing a second petition after the first has been decided. Any claim you already raised will be dismissed. New claims you did not raise the first time face nearly as steep a barrier and will be dismissed unless one of two conditions applies:¹

The claim relies on a new constitutional rule the Supreme Court has recognized and made retroactive to cases on collateral review.
The factual basis could not have been found earlier through reasonable diligence, and the facts, if proven, would establish by clear and convincing evidence that no reasonable factfinder would have found you guilty but for the constitutional error.

Even before filing in district court, you must get authorization from a three-judge panel of the appropriate circuit court of appeals. The panel rules within 30 days, and its decision to grant or deny cannot be appealed or reheard.¹ Even if the panel authorizes filing, the district court independently checks the statutory requirements and can still dismiss the claim. Your first petition carries enormous weight. Include every viable claim, because you may never get another chance.

1
Office of the Law Revision Counsel. 28 USC 2244 – Finality of Determination
2
Office of the Law Revision Counsel. 28 USC 2254 – State Custody; Remedies in Federal Courts
3
Justia U.S. Supreme Court Center. Holland v. Florida, 560 U.S. 631 (2010)
4
Justia U.S. Supreme Court Center. McQuiggin v. Perkins, 569 U.S. 383 (2013)
5
Legal Information Institute. Coleman v. Thompson, 501 U.S. 722 (1991)
6
Justia U.S. Supreme Court Center. Martinez v. Ryan, 566 U.S. 1 (2012)
7
United States District Court Southern District of Indiana. AO 241 Petition for Relief From a Conviction or Sentence By a Person in State Custody
8
Office of the Law Revision Counsel. 28 USC 1914 – District Court; Filing and Miscellaneous Fees
9
Office of the Law Revision Counsel. 28 USC 1915 – Proceedings In Forma Pauperis
10
United States Courts. Rules Governing Section 2254 Cases in the United States District Courts
11
Office of the Law Revision Counsel. 18 USC 3006A – Adequate Representation of Defendants
12
Oyez. Brecht v. Abrahamson
13
Office of the Law Revision Counsel. 28 U.S. Code 2254 – State Custody; Remedies in Federal Courts
14
Office of the Law Revision Counsel. 28 USC 2253 – Appeal
15
Legal Information Institute. Slack v. McDaniel