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Post-Conviction Relief/Collateral Proceedings

Indirect attacks on conviction and sentence: time limitations (3.850 – 2255)

The facts of every case are different, and whether the time limitations for initiating a collateral proceeding has run or not depends on many different factors. The information on this page is very general. Anyone considering seeking post conviction relief by initiating a collateral proceeding in either state or federal court, or both, should consult with a qualified and experienced attorney before making any final decision on how best to proceed. State and federal courts are not very forgiving in post conviction proceedings, requiring that any motions collaterally attacking a defendant’s conviction and sentence be filed in a timely manner raising only those issues that are subject to collateral review. Also, once a defendant raises an issue in a post conviction proceeding, he or she is generally barred from ever raising it again.

Post conviction collateral proceedings in state court

In addition to a direct appeal, a defendant may also file a collateral proceeding trying to set aside his or her conviction based on, among other things, ineffective assistance of counsel, within 2 years of the conclusion of any direct appeal in a non-capital case, and 1 year in a capital case. Florida Rule of Criminal Procedure 3.850(b). The time period begins to runs when the judgment and sentence becomes final, that is, after the Florida Supreme Court has either ruled on any appeal, or in non-capital cases, has refused to consider an appeal, or after the 30-day time period has expired to appeal to the Florida Supreme Court from any adverse decision of the District Court of Appeals that considered the direct appeal, including any motions for rehearing. If no direct appeal is filed, the time period begins to run after the 30-days to file an appeal has run.

A defendant may, however, attack his or her conviction and sentence at any time if the defendant alleges and can establish: (1) newly discovered evidence that was not known to the defendant or the defendant’s attorney previously and could not be ascertained by the exercise of due diligence; (2) a fundamental constitutional right asserted was not established during the 2-year time limitation and has been found to apply retroactively; or (3) the defendant retained an attorney to timely initiate the collateral proceeding attacking the conviction and sentence and the attorney, through neglect, failed to act. Florida Rule of Criminal Procedure 3.850(b)(1)-(3).

Federal post conviction collateral proceedings for state cases in federal court

After a defendant convicted in state court has exhausted all of his or her direct appellate remedies and collateral attacks in state court, he or she may then file a motion to vacate, set aside, or modify a conviction and sentence pursuant to 28 U.S.C. § 2254. The time limitation for filing such a motion is set out in 28 U.S.C. § 2244(d)(1), which provides that a one-year period of limitation shall apply to any motion to set aside, vacate or modify a judgment, conviction or sentence filed in the appropriate United States District Court by a person in custody or under a sentence pursuant to the judgment of a state court. The appropriate United States District Court is usually the federal court having jurisdiction over the geographical area where the state court hearing the original case is located. Under § 2244(d)(1) The limitation runs from the latest of: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review in state court; or (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed if the defendant was prevented from filing by such State action; or (C) the date on which the constitution al right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

The one-year limitation period is tolled during the time any state court collateral proceeding is “pending.” 28 U.S.C. § 2244(d)(2). However, it is important to note that if no state court collateral proceeding is filed, or the state court proceeding is filed after the one year time for filing the federal collateral proceeding has run, the clock is not tolled and although the defendant may have filed a timely state court collateral proceeding, he or she will be barred from seeking relief in federal court if unsuccessful in state court.

Federal collateral proceedings in federal criminal cases

When filing a collateral attack on a federal conviction or sentence, pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a Motion to Set Aside a Conviction or Sentence filed under 28 U.S.C. § 2255 may not be filed more than one year from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(1) (emphasis added). Under § 2255(f) the limitation runs from the latest of: (1) the date on which the judgment became final; or (2) the date on which the impediment to filing an application created by the governmental action in violation of the Constitution or laws of the United States is removed if the defendant was prevented from filing by such governmental action; or (3) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Where a defendant is unsuccessful on direct appeal and thereafter files a petition for writ of certiorari with the Supreme Court, the one-year limitation period for filing a motion to vacate under § 2255 begins to run when the Supreme Court either denies certiorari or issues decision on the merits. This is the rule even if the defendant files a petition for rehearing with the Supreme Court, since petitions for rehearings in the Supreme Court do not extend the tolling period. If no petition is filed before the Supreme court, the 1-year time period begins to run 90 days after the period for seeking certiorari from the Supreme Court expires. In cases involving a resentencing, as a general matter, the statute of limitations for filing a petition attacking a resentencing court’s judgment commences on the date that the resentencing judgment became final. This is the rule even if a defendant’s petition collaterally attacks both the defendant’s original judgment of conviction and the defendant’s resentencing judgment. There is an automatic extension of time, if you will, for a defendant to attack his or her underlying conviction, with the limitation period still beginning to run on the date that the latest resentencing judgment became final.

 

This web site has been designed to provide educational information only and is not intended to offer legal advice. Every case is unique and outcomes will vary depending upon the facts and legal issues of your case. Please do not make any decisions about any legal matter without consulting with an attorney first. There is no Attorney Client relationship formed by any use of the information provided

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